Public Bill Committee

[Hugh Bayley in the Chair]

Hugh Bayley: Before we resume consideration, I would like to remind everybody present in the strongest possible terms that civil servants and members of the public seated in the Public Gallery must remain silent while the Committee is sitting. If they do not remain silent, I shall have to direct that they be removed. I strongly deprecate the events of this morning, when I understand that voices were heard from the Public Gallery while I was collecting the voices on the question that clause 71 stand part of the Bill. Such misconduct by members of the public is disorderly.

John Hayes: On a point of order, Mr. Bayley. I am grateful for that ruling, which relates to my point of order and which I anticipated to some degree. I would like to add, however—and I seek your guidance on this—that a member of this Committee was apparently engaged in dialogue with someone in the Public Gallery during that sitting, which I would guess is as reprehensible as a member of the Public Gallery intervening in our affairs.

Hugh Bayley: As I was sitting at this end of the room when the voice from the gallery was heard this morning, I did not personally hear it and neither did the Clerk, who was sitting at this Table. I understand, however, from two hon. Members—one from each side—that this event did happen, which is why I made my statement to the Committee. Had I heard it myself in the middle of the morning session, I would have made a similar statement then. I obviously cannot comment on what I have not heard, but the Committee will have heard what the hon. Gentleman said.
We should make progress now.

Clause 76

Independent educational institutions

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Jim Knight: I trust that we are all refreshed and invigorated. By way of recap, Mr. Bayley, clause 76 introduces a new definition of independent educational institutions. The new definition includes independent schools providing full-time education for pupils of compulsory school age. It also includes part-time institutions that are the main provider of a child’s education, as defined by the number of hours of operation per week over a period of weeks in one year.
It might be helpful if I took this opportunity to respond to some of the points made when we opened the debate this morning, which were mainly about home education and comments made by home educators in response to our consultation. I will explain how current education law and proposed changes in the Bill affect home educators.
Section 7 of the Education Act 1996 requires the parents of every child of compulsory school age to cause their child to receive—by regular attendance at school or otherwise—efficient, full-time education suitable to that child’s age, ability and aptitude and to any special educational needs they may have. “Otherwise” in this context may be education at home or in an institution that is not registered as a school.
During 2007, we commissioned research to assess the number of children educated at home. The researchers estimated that around 20,000 were known to local authorities, but that there could be a further 20,000 or more who had not identified themselves to their local authorities. A home is not an institution, and our policy is clear. When parents deliver or supervise education that takes place in the home, they are not conducting an independent educational institution.
We clarified arrangements for monitoring home education in November 2007, publishing the document the hon. Member for Bognor Regis and Littlehampton referred to, “Elective Home Education Guidelines for Local Authorities.” That underwent extensive consultation, generating over 900 responses, most of them from home educators who have a keen interest in legislation that could affect their freedoms. I am pleased to say that home educators broadly welcomed the guidelines. Only 4 per cent. of respondents to the consultation thought the guidelines unhelpful.
A small number of parents opt to educate otherwise than at school, using unregistered settings where children are supervised and taught by adults who are not their parents. Tyndale Academy—which I mentioned in response to questioning from the hon. Member for Bognor Regis and Littlehampton—is one such institution. Tyndale has varied its hours over the years, but its website currently states that it is a tuition group that operates from 9 am to 2 pm, five days per week. Earlier I named the other three institutions, which we have referred to in parliamentary questions and elsewhere.
In all four cases, children attend for a substantial part of the school day and are not supervised by their parents. If the institutions were registered independent schools, they would be registered and inspected against the regulatory framework introduced in September 2003, following the Education Act 2002. That framework ensures that all children in registered schools have suitable learning opportunities in a safe and secure learning environment. The requirement to register part-time institutions, which are not currently subject to any regulatory or monitoring framework, will ensure that the same safeguards are in place for children in those settings. Should such a part-time institution use corporal punishment, for example, that would then be regulated and the law outlawing corporal punishment applied. The clause applies to institutions that provide 12.5 hours for primary-age children and 15 hours for secondary-age children, for 28 weeks a year or more. That equates to more than half of a typical school week for more than half of the school year. The institutions are providing the majority of a child’s education, and it is therefore right that they meet the minimum standards.
The independent school standards are flexible and are adapted successfully to a wide range of settings, including Steiner schools, schools following the curriculum of other countries, pupil-referral-type provision and schools that cater for children with severe learning difficulties. There is no question of independent schools having to follow the national curriculum or employ teachers with specific qualifications, and therefore no reputable institution should have difficulty complying with the statutory requirements.
The hon. Member for Bognor Regis and Littlehampton referred to opposition from consultees to extending the scope of regulation to part-time education institutions. I agree that there was opposition, but it came mainly from home educators who thought—wrongly—that the proposals would affect home education. In our first consultation in November 2006, 156 of the 175 respondents identified themselves as home educators, individuals or “others”. Local authorities and registered independent schools were in favour of our proposals. Respondents who disagreed with the consultation proposals were worried about how we would define “a major part” of a child’s education. My Department responded to those concerns by issuing a second consultation in August 2007, which made it clear—we thought—that home education was to be excluded from the proposed changes. However, 50 per cent. of the responses were from home educators who opposed the proposed changes because they thought that the changes might restrict their freedom to come together to deliver group activities as part of a home education programme. There were also objections from sporting bodies which thought that sport or other supplementary provision might be caught by the new definition. Therefore, in drawing up the legislation we paid close attention to those representations. The Committee will see that we no longer attempt to define the main provider on the face of the Bill, because that would be open to misinterpretation. Rather, the definition works by reference to a lower bound of hours, as I have set out.
The hon. Member for Bognor Regis referred to the policy statement on clause 76. It is not the intention of the proposals to remove parents’ rights to educate their children at home. Home education, supervised or delivered by parents, either in the family home or elsewhere, and any arrangements used by parents to supplement home education which do not exceed the thresholds, will not be included in the regulatory regime. Some parents supplement home education with provision that includes group tuition by private tutors employed by parents, or tuition by groups of home educators themselves, for drama, sport or music. Only where a parent is delegating responsibility that exceeds the minimum hours thresholds will that provision be subject to the regulatory regime.
Further, to ensure that no provision is unintentionally caught by the new definition of independent educational institutions, clause 76 provides for certain settings to be excluded. Those exclusions will definitely apply to hospital schools, to home tutorial services organised by a local authority, and to home education—a point I reinforce because some people involved in that activity clearly find it difficult to believe what we say. More detail is given in the policy statement that I circulated this week to the Committee.
Other settings that either do not meet the proposed threshold or are not the main provider will remain outside the definition of an independent educational institution. Examples are summer schools, sports clubs, music tuition, and revision and study support groups undertaken in support of a child’s main education. I say yet again, to be absolutely clear, that we do not believe home education is affected by the definition.
I believe that the proposals strike the right balance between protecting children and ensuring that they receive a good education, and allowing parents to make arrangements that they believe are in the best interests of their child. They leave a parent’s right to home educate intact and ensure regulation for all settings in which a material part of a child’s education is delegated to others. On the basis of those many reassurances and answers to the hon. Gentleman’s many and varied questions, I hope that he will be happy to withdraw the amendment.

Nick Gibb: We may not think people are listening to our debate, but during the lunch break I had a couple of e-mails from people who were listening, regarding our proceedings just before lunch. There is a concern among home educators that, if they form a group of parents to educate their children collectively, and exceed 12.5 hours of primary education or 15 hours of secondary education, they will constitute an independent institution and will therefore require to be inspected. The Minister confirmed that in his response. That is a concern to home educators, because they do group together and provide education on a collective basis, and they do not believe that that should be considered a school.

Jim Knight: This Government have been responsible for the parent-promoted Elmgreen school. It is the policy of the hon. Gentleman’s party also to encourage parent-promoted schools. Does he think that they should be regulated?

Nick Gibb: Yes, because they are schools. Parents who get together because they want to home educate their children—which they are entitled to do under the law—do not wish those institutions to become schools with all the expense that that would entail.

Jim Knight: How then would the hon. Gentleman differentiate between a parent-promoted school and one where parents have come together to form an institution for home education?

Nick Gibb: It need not be an institution—just parents getting together to home educate their children. It is difficult to be an expert in maths, geography and science. A group of parents may well get together and collectively educate those children in one of their homes, and this provision will mean that that will constitute an independent educational institution. That is why home educators are concerned, and the Minister has done nothing to alleviate that concern. As for health and safety, as one of my e-mail correspondents this morning said, there is already plenty of legislation under which local authorities can intervene if they feel there are safety issues affecting children.

Jim Knight: I hope that it will help those listening if I say that the regulation will exclude those arrangements where parents are, collectively, as a sort of mutual organisation, educating each other’s children, and the parents themselves are present. However, if it starts to look like an institution, I think it fair and reasonable that it should be regulated as an institution.

Nick Gibb: I do not think that that will alleviate concerns either, because parents may well wish to employ specialist teachers—a music or piano teacher, for example—to assist with their tasks. When there are legislative changes, I like to know what problem the regulation is seeking to solve. What problems has the Minister become aware of that have led him to propose the clause? If he can reply, I have a number of other questions on that point.

Jim Knight: To give an example, I am aware of one institution, currently unregulated, that practises corporal punishment. That is illegal and it should be regulated.

Nick Gibb: That brings me to the real purpose of the clause, which is to deal with one particular institution: the Tyndale Academy. Because of that, it is dragging into these provisions 20,000 or 40,000 or—according to some estimates, 50,000—home-school educators in this country. I do not have a view one way or the other. I have not visited the Tyndale Academy. I have just received submissions from it that I think ought to be aired. The principal of Tyndale Academy, Ferris Lindsay, has written to my hon. Friend the Member for Surrey Heath (Michael Gove) stating that the Department’s first step was to write to Tyndale in an officious manner, and that the academy was threatened with criminal prosecution if it failed to register within 30 days. After that threat was withdrawn, the Department started consulting on the measures.
The principal says that the academy believes that it is being victimised by the Department in an officious, over-zealous way and that that has led to this clause, which is designed to deal with only that one institution. He states:
“The reason for such single-minded resolution on the part of the DCSF has, we believe, been because of an unstated aversion to the discipline policy at Tyndale.”
He further states:
“With parental permission, tutors at Tyndale are able to use a smack on the hand to correct a persistently disobedient child. This sanction was used about a dozen times during the academic year 2005-06. The Department recognises the legality of the situation and, rather than prosecute the proprietor, it has sought to embrace the provision at Tyndale under a framework that would render the policy illegal.”
The academy believes that that is a misuse of departmental power and resources. There have been several hundred pieces of correspondence between the Department, the school, the local authority and the Member of Parliament for that area.

Oliver Heald: Can my hon. Friend offer the Minister any idea of what the literacy and numeracy levels are like at that academy?

Nick Gibb: An Ofsted inspection has judged it a good school, with good behaviour and academic standards.
Will the Minister respond to the point that the institution can use minor corporal punishment if it has parental permission, but that it will no longer be able to do so if it becomes an educational institution, because it will be subject to the rule that corporal punishment cannot be used in schools? At the moment, as a collective of parents, it can do that with their permission. Is that not the drive behind the clause?

Jim Knight: I do not propose to get drawn into a specific discussion on the Tyndale Academy because we are not proposing the legislation merely to deal with one institution. As we have already set out, it would currently apply to four institutions.
As I have set out previously to the Committee, our intention is to ensure that, if a child is receiving the majority of their education somewhere that could be defined as an institution, it is safe and secure. If any one of those institutions were to operate at fewer than the number of hours that we have specified, I have set out the circumstances in which that would become unregulated activity. It is then up to those parents what goes on there, as long as it is within the law with respect to safeguarding the children.

Nick Gibb: That is not the view of Ferris Lindsay, who has e-mailed me this afternoon to say:
“This chapter of the Bill was specifically drafted with one aim in mind. It was added to the Bill very late and prejudged the findings of the Consultation, which supposedly “justifies” it. We have letters from Jacqui Smith (2004) and Lord Adonis (2007) to our own MP Stephen Timms stating that Tyndale was the only establishment that the Department has come across which has not registered as an independent school when asked to.”
I feel that there is some persecution of that school. I have not seen it and I do not know what it is like. However, I wanted to air the strongly held views expressed to me and others by the academy about the clause and the activities of the Department over the last couple of years, which seem to have been over-zealous and officious towards the school. It is in a deprived part of London and is providing a much higher quality of education in that area than is being provided currently by the state system.

Clause 76 ordered to stand part of the Bill.

Clause 77

Application of Chapter to institutions in England only

Nick Gibb: I beg to move amendment No. 142, in clause 77, page 47, line 39, leave out from beginning of line 39 to ‘Chapter’.

Hugh Bayley: With this it will be convenient to discuss amendment No. 143, in clause 77, page 47, line 40, at end add
‘shall cease to apply to independent educational institutions in England.’.

Nick Gibb: The purpose of the amendment is to enable me to raise a minor drafting concern brought to the attention of members of the Committee by a supplementary briefing prepared by the Independent Schools Council on 21 January. It made the following point:
“Much of Part 4 Chapter 1 of the Bill restates Part 10 Chapter 1 of the Education Act 2002, with consequential changes made to reflect the proposed transfer of regulatory functions from the Secretary of State to Ofsted. However, we note that Part 10 Chapter 1 of the former Act does not appear to be expressly repealed”.
I tried to find the repeal but could not find it either. The briefing went on to say that that is what it
“would expect since independent schools should clearly not be expected to comply with two contrary systems of registration and regulation. We recommend consultation with Parliamentary Counsel to ensure that, should Part 4 Chapter 1 of the Bill become law (as we hope it will not), any lack of clarity over the status of the existing registration provision be removed on the face of the Bill.”

Jim Knight: Clause 77 applies chapter 1 of part 4 of the Bill to independent educational institutions in England. Chapter 1 of part 10 of the Education Act 2002, which sets out the current statutory framework for independent schools in England and Wales, will be amended by the Bill so that it no longer applies to independent schools in England. In its place, the provisions in part 4 of the Bill will come into force, subject to the will of Parliament. Those are the substantive issues that we will come on to discuss in detail.
The current regulatory regime set out in the 2002 Act will continue to apply to independent schools in Wales, but hon. Members might have noticed that the Government have tabled an amendment to provide a framework power for the National Assembly for Wales—I think that it is contained in a new clause to replace clause 132. That will provide the legislative competence for the Assembly to make legislation relating to the regulation and inspection of schools in the independent sector. The framework power will allow the Assembly to develop an approach to monitoring the education provided in Welsh independent schools in a manner that meets the needs of Wales. It will also enable the Assembly to make changes comparable to those made for England if it decides after further consideration and consultation to do so.
The amendments would have no substantive impact on the operation of the clause and, indeed, would not assist readers because they would remove the helpful reference to the legislative framework for Wales. The amendment is therefore unnecessary and I respectfully ask the hon. Gentleman to withdraw it.

Nick Gibb: I am grateful to the Minister for that partial explanation, but I still do not understand how it is that chapter 1 of part 10 of the Education Act 2002 will be removed, since clause 77 merely states that references in chapter 1 of part 4 of the Bill are to apply only to England. It does not take out the references in chapter 1 of part 10 of the 2002 Act, so those provisions will still apply.

Jim Knight: I always seek to be helpful to the hon. Gentleman. I had not planned to say anything else, but I refer him to paragraph 13 of schedule 1— [ Interruption. ] After that musical accompaniment, that is all that I need to say.

Nick Gibb: I will ponder the Minister’s words after the Committee to see whether he is correct, but on the basis of his explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

Clause 78

Independent educational institution standards

Nick Gibb: I beg to move amendment No. 123, in clause 78, page 48, leave out lines 18 and 19.
Clause 78 introduces an additional standard to those already legislated for in section 157 of the Education Act 2002, which apply to independent schools. The additional standard set out in subsection (1)(h) relates to the quality of the leadership and management of independent educational institutions. Paragraph 2.38 of the Government’s consultation paper states that the proposal is to
“introduce a new management standard to ensure that independent schools have good quality leadership that enables the school to meet the standards required for registration, and continued registration.”
It is extraordinary that the Department should want to legislate over that. The independent sector in this country is not just excellent but world class. It represents the benchmark against which we should be assessing all schools in the country.

Jim Knight: I would not argue that many or even the majority of independent schools are excellent. Is the hon. Gentleman arguing that every single independent school, however large or small, however traditional or modern, is of the excellence he described?

Nick Gibb: Of course not, but I will argue, if the Minister holds his horses for a moment, that there are no problems in the independent sector with management and leadership so far as the Independent Schools Inspectorate is concerned.

Jim Knight: As far as the Independent Schools Inspectorate is concerned.

Nick Gibb: Absolutely. It represents 80 per cent. of children who are educated in the independent sector. The independent sector has very good management. Despite educating only 7 per cent. of children in this country, rising to about 12 per cent. at sixth form, it achieves 62.8 per cent. of all A grades in A-level physics. There are similar figures for biology and chemistry. As Christine Ryan, the Chief Inspector of the Independent Schools Inspectorate, said in her evidence to this Committee on 24 January 2008,
“None of the schools that we inspected were found to have unsatisfactory leadership and management.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 92, Q215.]
The Independent Schools Inspectorate is a very demanding and high quality inspectorate. It is itself inspected by Ofsted, which found all its inspections to be of high quality.
The maintained sector, by contrast, has been heavily criticised by Ofsted, which complains that 49 per cent. of secondary schools are not good enough, to use the words of the Government. Why the Government, therefore, feel it necessary to legislate on standards of management and leadership in the independent sector is baffling, unless it is in some way intended to homogenise their leadership or to extend state control into the way they manage their schools.
As the Independent Schools Council says in its detailed written response to the consultation document:
“Of a sample of 412”-
independent
“schools inspected since January 2006, leadership was judged to be excellent in 19%. of schools, good in 64%. and satisfactory in 17%. In no school was leadership considered unsatisfactory.”

Oliver Heald: I wonder whether my hon. Friend is doing full justice to the Government’s intentions. Perhaps what they are after is to lower the quality of the independent sector to their standards so that there is no proper literacy and numeracy and the thing becomes a shambles.

Nick Gibb: That is a suspicion that the most cynical would have. When there are statistics available that show that, while educating only about 10 per cent. of the population, independent schools achieve 65 per cent. of the A-level A grades in the sciences, there could be a view that the way to remove those benchmark comparisons is to lower the standards in the independent sector. That is if the people who oppose private education cannot abolish it altogether, which is the view of a minority.
The ISC document goes on to say at paragraph 79,
“we do question why it is necessary for there to be a standard to this effect and the way in which this proposal has been presented has particularly caused concern amongst member schools.”
To quote from paragraph 81, the ISC’s particular concern is that if the standard
“is being introduced to cope with poor management in a minority of non-ISC schools, it might be argued that any standard aimed at this problem would be far lower than the standard already being applied in ISC schools.”
It adds:
“it would be disappointing if, because of the reason for its introduction, the Government was to set a standard far lower than that.”
The other main concern expressed by the ISC about the new management standard is that of homogenisation—the point my hon. Friend the Member for North-East Hertfordshire was alluding to. It says:
“ISC would have a fundamental objection to any standard which sought to impose particular styles of leadership or a framework or criteria which required schools to conform to one organisation’s view of how schools should be managed. The RIA, for example, refers to schools being required under the new standard to appoint particular teachers.”
The Independent Schools Inspectorate itself therefore opposes this new management standard. Page 9 of its written response says:
“We do not agree with the proposal as drafted.
The ISI framework for inspection already includes a requirement to make judgements and report on the quality of a school’s leadership and management. Evidence from inspections shows that the management of most ISC schools is of good quality, much of it excellent...Clear mechanisms are already in place under the ISI/ISC system for ensuring that any required improvements are made by the school following an inspection.”
As the ISI goes on to say:
“If no other mechanism can be found for dealing with the small number of schools needing improvement then the management standard would need to be written in such a way that it did not weaken the expectation of high standards already required in ISC schools.”
Finally, it makes the important point that
“The standard should not require schools to operate a particular style of management, and care should be taken to reflect the very diverse nature of schools within the sector.”
The concern of the independent sector about this new management standard is best summed up by Jonathan Shephard, the chief executive of the ISC, who, in response to a question from the hon. Member for Yeovil, said:
“There is a concern about creeping regulation and Ofsted-isation... if you have Ofsted imposing a management standard on all independent schools, then the way in which the schools are run will tend to conform with that standard. You may or may not like independent schools... but they do educate children at all levels of ability in a very good, effective and workmanlike way. They do that because they are able to be flexible and responsive and they have to answer to... parents, children and universities. If you get a one-size-fits-all, increasingly prescriptive manner from Ofsted...you may lose that flexibility and independence and that is a very serious worry.”——[Official Report, Education and Skills Public Bill Committee, 22 January 2008; c. 86, Q195.]
I am astonished by the hostile reaction to this proposal from the very respectable and statutory body, the ISI. It is very surprising that the Minister and the Department are proceeding with this measure, given the opposition to it from the ISI, the very body that will be charged with implementing and enforcing it. I wonder whether this reflects the hostility to the independent sector from the Minister or the Department or whether old Labour is simply exerting its influence in the dying months of this Government. Amendment No. 123 seeks to delete the new standard from the Bill. I hope that, on reflection, the Minister will give it his support.

Jim Knight: At earlier sittings, the hon. Member for Bognor Regis and Littlehampton introduced amendments on behalf of the National Union of Teachers. He has now returned to a more natural bedfellow in advocating so strongly for the Independent Schools Council. He has been a passionate and consistent advocate of independent schools in this House. I have no criticism of the standards of members of the ISC. I have no wish to be vindictive, or any of the other adjectives that he may have used, towards him. My Department has considerable experience of the operation of the current regulatory regime for all independent schools, not just those inspected by the ISI or members of the ISC.
The regulatory regime was put in place through the 2002 Education Act. Standards have contributed to raising standards across the board in the independent sector and that is carried forward in the Bill. Inspections against the standards have found that in poor schools sustained failure to meet the minimum requirements is generally a result of weak and ineffective leadership. To address that, clause 78 introduces an additional standard, relating to the quality of leadership and management in an institution. The Thomas Francis Academy, which is not a member of the ISC, I hasten to add, had a case that went to the Care Standards Tribunal recently. It was ordered that that institution should be removed from the register and closed. There was discussion at the tribunal in that case about weak management and leadership having caused the problems.
Putting a new standard on the face of primary legislation will send a clear message across the whole sector that effective leadership and management are crucial to an institution’s successful operation. Inspection evidence shows that there is a need for transparent standards that secure effective strategic management and leadership, enabling institutions to meet the other required standards. The new standard should also ensure that institutions introduce management systems and other mechanisms to make and sustain improvements where standards are not met.
The hon. Member for Bognor Regis and Littlehampton referred to the ISC’s argument in oral evidence that it is a low minimum standard and that it will encourage schools with high standards to lower the bar, effectively coming down to a lowest common denominator—to the minimum required by regulation. I simply do not accept that argument. Many independent schools are rightly proud of their high standards of education, welfare and premises, which are well above the minimum specified in regulation and in other standards.
As Mr. Shephard intimated when giving evidence, the best independent schools are not driven by the basic standards currently regulated for, and set out in legislation. Rather, he said, they
“have to respond to three demanding constituencies: parents, children and universities.”
I am absolutely confident that the high standards of management and leadership currently enjoyed by those schools will continue, irrespective of any change in legislation.

Gordon Marsden: I entirely agree with the position that my hon. Friend takes. As it happens, I also agree with the overall consensus of comments on independent schools. Does he agree that, in the current economic climate, a proportion of independent schools, albeit a small proportion, whether or not they are members of the ISC, face considerable economic pressure? In those circumstances, it is important for the reputation of the sector as a whole as well as for the protection of parents that minimum standards should apply across the piece.

Jim Knight: I certainly agree with my hon. Friend that it is important to have minimum standards, so that parents can be sure of that minimum. However, it is not a standard that everyone has to fall to. In responding effectively to the market, which is what they generally want to do, independent schools will seek to out-compete each other on the basis of their standards.
We also heard, in the words of the witness and of the hon. Member for Bognor Regis and Littlehampton, that the new standards are a further sign of “Ofstedisation”—a slightly ugly word—and the “creeping regulation” of independent schools; the word “homogenised” was used. For ISC-affiliated schools, it will usually be the Independent Schools Inspectorate and not Ofsted that considers the ongoing quality of leadership and management standards in an institution. If necessary, it will be for Ofsted to act on the basis of the evidence provided in these reports. That is extremely unlikely for the 50 per cent. or so ISI-inspected independent schools because, as we have heard, they all do an extremely good job.
The new standard is designed to address the failings of smaller, poor-quality institutions, which are inspected by Ofsted. Unless we introduce the new standard, Ofsted will be prevented from reporting on leadership and management failings in those institutions, leading to the prolonged regulatory action that we see now.
I am not optimistic, but I hope that my reassurances will have persuaded the hon. Member for Bognor Regis and Littlehampton to withdraw the amendment.

Nick Gibb: I am sure that the Minister could have drafted the Bill to confine the provisions to schools inspected by Ofsted. That would have alleviated all the concerns of the ISC, which represents those independent schools that educate 80 per cent. of Britain’s independently educated children.

Jim Knight: The hon. Gentleman will be aware that some independent schools are inspected by other inspectorates—the School Improvement Service, the Bridge Schools Inspectorate and other independent inspectorates. We are making provision in the Bill to allow others to be approved and regulated to allow quality assurance. Does he not see the merit in having a minimum standard that will have no impact on Independent School Council members but which will give reassurance across the whole sector?

Nick Gibb: The purpose of having an independent inspectorate is that it can apply its own standards. We therefore have Ofsted inspecting the inspectorate to ensure that inspections are carried out in accordance with those standards. Provided we are happy with the standards of the independent inspectorates, it should be left alone.
The real concern is the phrasing in the regulatory impact assessment that schools should be “required” to appoint particular teachers. For example, a school may not employ many qualified teachers, but instead employ very well-educated people with first-class degrees from Britain’s top universities who are trained to teach in the way that the school prefers. They would not have a PGCE or qualified teacher status, but Ofsted may come along and say, “I’m sorry, you have to have that.” The whole ethos of the school, which is designed to attract academically gifted people to teach, could be destroyed by a specified requirement that they conform.

Jim Knight: Would it help if I said that there is no suggestion that we should require qualified teacher status in the independent schools?

Nick Gibb: The response to that is “Yet”. Our concern is what comes down the line, once the legislation is in place. The Minister accused me—I do not regard what he framed as an accusation in that way—of being an advocate of independent education. Yes, I am an advocate of independent education—of high-quality education wherever it is. I am an advocate of knowledge-based education, wherever it is in the country. I am afraid that in this country we have too little of that high-quality education, which is part of the problem my hon. Friend the Member for North-East Hertfordshire alluded to and part of the problem affecting so many aspects of life in this country. I spend a lot of my time advocating high-quality state education, such as that at the Mossbourne academy, which educates children from a very deprived part of London but achieves results that are better than 95 per cent. of comprehensive schools.
The issue has been aired widely. I am not happy with the response, but I am sure that in weeks ahead the Independent Schools Council will continue to lobby the Minister about how the measure—if it gets through the other place—will be implemented. However, on the basis of the issues that have been aired, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 ordered to stand part of the Bill.

Clause 79

The register

Nick Gibb: I beg to move amendment No. 124, in clause 79, page 48, line 36, leave out ‘Chief Inspector’ and insert ‘Secretary of State’.

Hugh Bayley: With this it will be convenient to discuss the following amendments:
No. 125, in clause 79, page 48, line 40, leave out ‘Chief Inspector’ and insert ‘Secretary of State’.
No. 126, in clause 79, page 48, line 41, leave out ‘Chief Inspector’ and insert ‘Secretary of State’.

Nick Gibb: The clause is the provision at the heart of part 4, which transfers the registration of independent schools from the Department to Ofsted. The amendments replace “Chief Inspector” with “Secretary of State” in order to maintain the current position, under which the registration and regulation of independent schools lies with the Department. Schools in the Independent Schools Council are inspected by the Independent Schools Inspectorate, while those that are not members are inspected by Ofsted. In addition to opposition to the proposal from the bodies to which it applies, there is also concern about the quality of the work carried out by the Department in preparing and researching the policy.

Jim Knight: I am assuming that in talking about schools that are inspected by the Independent Schools Inspectorate or, if not, by Ofsted, that the hon. Gentleman is not saying that he does not support the moves to inform the Bridge Schools’ Inspectorate or the Schools Inspectorate Service.

Nick Gibb: No, I am not saying that at all. For shorthand, I was saying the ISC and Ofsted, but of course the Minister is right and I should have mentioned the other inspection bodies, and the Focus Learning Trust as well.
In addition to opposition to the proposal, there is concern about the process leading up to the legislation. Jonathan Shephard said, in his evidence to the Committee, at question 191:
“If you look at the regulatory impact assessment, page 14, under the title ‘Analysis and Evidence’, it says,
‘Independent schools will benefit from only dealing with Ofsted.’
But that is untrue in respect of more than 80 per cent. of the children in independent education in England who will deal not only with Ofsted but with the ISI.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 83-84.]
The consultation document was incorrect too, in a material way, when the original version was published on 27 July, at the beginning of the consultation process. It said at paragraph 2.23 that the rationale for moving registration from the Department to Ofsted
“has been prompted by the transfer of boarding school and children’s home registration and regulation to Ofsted from CSCI from April 2007.”
However, that is not correct. Ofsted does not register or regulate boarding accommodation. That remains with the Secretary of State. What transferred from CSCI to Ofsted was the inspection of boarding provision. That is not a minor drafting error, but goes to the root of the rationale for the whole policy, which, according to the consultation document, is to rationalise the registration and monitoring of the sector prompted by the transfer of
“boarding school...registration and regulation to Ofsted from CSCI from April 2007.”
Had the paragraph been worded correctly, that this was prompted by the transfer of inspection from the Commission for Social Care Inspection to Ofsted, it would not make sense and would not justify the rationalisation of regulation and monitoring.
The Government changed the wording in the consultation document on 5 September 2007, but now the paragraph is clear that the reason given for the policy does not make sense. There are two errors of fact——the one that I have just explained and the fact that there will not be a unified strand of regulation, registration and inspection. They are fundamental to the whole explanation and thrust of the policy in the clause and undermine it completely.
As Christine Ryan, the chief inspector of the Independent Schools Inspectorate, said in her evidence to the Committee:
“One of the thrusts of these proposals reflects the desire to create a unified body, but that will not occur”.
However, there are problems with the policy, too. It is important to keep the functions of regulation and inspection separate. As Christine Ryan said:
“One of the very important functions that we carry out is to check on regulatory compliance of independent schools. The regulations—as is the nature of the beast—are often open to some interpretation. If a school challenges whether or not regulatory compliance is there or not and we want to be sure, we can go to the Department and we agree a decision on interpretation”.——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 85, Q193.]
Jonathan Shephard, the chief executive of the Independent Schools Council, said:
“As a matter of principle, it is very important that inspection and regulation should be separated. Inspections can be wrong. Inspectors can make mistakes. It is important that when they go to a regulator to say that there is a problem ... that is a necessary check and balance. If the inspector goes to itself, that check and balance is not there.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 84, Q191.]
The policy to transfer registration and regulation from the Secretary of State to Ofsted is not driven by the need to create a unified point of contact for all registration, regulation and inspection procedures. It is not driven by the transfer of functions relating to boarding schools from the Commission for Social Care Inspection to Ofsted, because that relates to inspection, not regulation. It is not good policy, because it will remove an important separation of functions and instead set up conflicts of interest.
Once those things are taken out of the equation, the only reason that is left is efficiency savings. Paragraph 2.1 of the consultation document says:
“We believe that it would be more efficient to transfer the registration and monitoring functions for education provision from DCSF to Ofsted thereby creating a single regulatory body for independent schools.”
Leaving aside the obvious point that the measure will not create a single regulatory body for independent schools, because Ofsted does not register or regulate boarding, welfare and independent schools, let us look at the simple efficiency argument from the point of view of the Government and of tax payers.
The registration and regulation of independent schools are carried out by the independent education and boarding team in the Department for Children, Schools and Families. On 9 January, the Minister responded to a parliamentary question I had tabled, and said:
“There are currently 18.2 full-time equivalent (FTE) posts in the Department’s independent education and boarding team.”—[Official Report, 9 January 2008; Vol. 470, c. 655W.]
I do not know whether Miriam Rosen, the director of education of Ofsted, or Roger Shippam, the deputy director, knew about that answer. When she gave evidence to the Committee on 24 January, she was asked:
“How many members of staff would you need to run the registration and monitoring of the independent sector?”
She replied:
“We are still working on the exact numbers. I am not quite sure exactly what numbers we will need to transfer to us, to do that work.”
She then suddenly said:
“We think it will be about 10.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 95, Q225.]
In answer to a question from the hon. Member for Yeovil, she replied:
“I do not know the exact costs because we are still working on them with the Department.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 96, Q228.]
I am not sure where the figure of 10 came from if they are still working on the costs. It is all very odd, but I will say nothing stronger than that, Mr. Bayley.

Stephen Williams: Is the hon. Gentleman aware that Ofsted has been asked to achieve some very challenging expenditure reduction targets? When representatives of Ofsted last appeared before the Select Committee on Children, Schools and Families, of which I was then a member, it was some way off meeting those targets. That may explain the confusion over the head count and the budgets.

Nick Gibb: If that function was transferred to Ofsted, I would very surprised if it were carried out by 10 people. I look forward to monitoring that matter as an Opposition Member through parliamentary questions, or by asking Ofsted directly as a Government Member.

Oliver Heald: When replying to a question that I put to her in that evidence session, Ms Rosen agreed that we would need a procedure for dealing with the sort of disputes that my hon. Friend has outlined. That procedure would not be the responsibility of the part of Ofsted that we are discussing. There would have to be a separate organisation, so there would clearly be staffing demands for that as well.

Nick Gibb: My hon. Friend makes a good point. It would be expensive, too, because the people involved would have to get up to speed with the matter, as they would not have dealt with it regularly as part of the independent schools team in the Department.
The existing arrangements work well. Christine Ryan said in her evidence:
“That link and that contact with the Department works very smoothly—it has a dedicated team who know our system very well. Ofsted is already having to cope with a very large number of changes from the other duties it has taken on. If this transfer happens now, we are concerned about the loss of that communication.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 85, Q193.]
This is one of the management issues that the Government do not understand. They fail to understand human frailty. They created a tax credit system that is too complex to be administered smoothly, and they took responsibility for the monitoring and supervision of banking away from the Bank of England, with which it had been for centuries, and gave it to a new bureaucracy, the Financial Services Authority. The FSA flunked its first test by merging Customs and Excise with the Inland Revenue, not understanding that the academic disciplines of the tax code are very different from VAT and excise duties, to create the administrative shambles that is Her Majesty’s Revenue and Customs. I am sure that the same will happen under this provision.
In paragraph 36 of its written response to the consultation, the Independent Schools Council stated:
“There is an implication in the proposals that the Department wishes to transfer responsibility for regulation and registration as part of the process to remove its operational responsibilities. However, ISC would argue that this is not a reason in itself: administrative convenience should feature low in any list of factors justifying reform of a statutory regulator. We recognise that other functions of the Secretary of State may have been transferred over the last few years—student loans, pensions, IT advice etc.—but these are, we submit, wholly different functions from those of a regulator. As a matter of principle”—
I agree strongly with this point—
“ISC believes that, as in the maintained sector, responsibility for overseeing the regulation of the independent sector should rest with the Secretary of State, accountable in and to Parliament, rather than a non-governmental public body such as Ofsted whose officers report to the Education and Skills Committee only twice a year.”
In addition to those arguments of substance, there are genuine concerns about the consultation process as a whole. Jonathan Shephard said in his evidence to us:
“It is quite clear that the consultation did not follow Cabinet office guidelines in that ISI, an important stakeholder, was not consulted as it should have been, in advance of the consultation going out.”
Christine Ryan said:
“The simple answer to your...question about whether we were consulted prior to the formal consultation is, no.”——[Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 85, Q194.]
In his response, the Minister cited a letter dated 9 May 2006, from Penny Jones. Since then Jonathan Shephard has written to the Committee. He wrote on 4 February that the letter to which the Minister referred stated that the transfer of regulation would be
“subject to a full consultation with all independent schools”.
He said that the consultation
“was expected to be in autumn 2006. It never happened. There is no record of any ISC school being consulted, and we are not aware of any non-ISC school being consulted. The Committee should note that the letter specifically asks me not to share the contents of the letter with member schools, and therefore I could not have consulted them on the basis of the letter.
For the Minister to imply that this letter was (or even approached) adequate consultation is unsound. The reality is that there was no effective consultation with ISC or with its member schools.”

Jim Knight: Does the hon. Gentleman not accept that when that letter was written, the ISI was part of the ISC?

Nick Gibb: I am not addressing that point. Jonathan Shephard did not mention whether the ISI was different from the ISC, but the organisations were very different bodies based in different premises, even though they were legally part of the same body. His point was that the schools were not consulted, and that he was not allowed to consult them. Although he had received the letter, was happy to read it and could discuss it with Christine Ryan of the ISI, he was not allowed to discuss it with ISC schools, which is how a representative body should conduct itself. He could not just come up with an opinion of his own; he needed to discuss the matter with the schools but could not do so, because of the contents of the letter. A real consultation did not happen.
If the Government introduces legislation and there is hostility and concern from the bodies to which the legislation directly relates, the Minister has a duty to reflect on that. I hope that in his response he will indicate that he intends to give further consideration to the valid points raised in the very detailed briefings given to members of the Committee.

Jim Knight: The hon. Gentleman has raised all sorts of points, and I will respond to them as briefly as I can. This clause proposes that responsibility for the registration and regulation of independent educational institutions be transferred from the Secretary of State to Ofsted. In doing so, the chief inspector will have responsibility for the registration of new institutions. Applications for registration will be made to her, she will determine those applications and enter successful institutions on the register.
The chief inspector will also be responsible for approving certain changes to provision in independent educational institutions. She will have broader monitoring and enforcement powers under this clause, including powers to remove institutions from the register. It will be the chief inspector who has day-to-day contact with independent educational institutions. Concentrating registration and regulation in one organisation will reduce red tape, particularly for the 1,180 smaller independent schools not in the Independent Schools Council or the Focus Learning Trust. Under current arrangements, non-affiliated schools have to deal directly with Ofsted and DCSF. Many ISC schools already have a relationship with Ofsted, as well as with DCSF, either because Ofsted inspects boarding provision in ISC schools or because it registers or inspects their child care provision.
Overall, 2,019 out of 2,359 independent schools will see a reduction in bureaucracy as a result of these changes. That is because, in future, they will deal with an independent inspectorate and Ofsted rather than with an independent inspectorate, Ofsted and DCSF, or because they will have to deal only with Ofsted, rather than with Ofsted and DCSF. Importantly, the remaining schools will see no increase in burdens and therefore will not be disadvantaged. It will also be a more efficient way for the Department and Ofsted to operate. Unlike at present, there will be no need for paperwork and reports to be shuttled backwards and forwards between the organisations, and Ofsted will be able to draw on the significant body of expertise it has built up in this area. We have not reflected that in the impact assessment, because the estimate of cost savings has not been made. It is a benefit, and the impact assessment tends to focus more on costs than on benefits.
It is worth my saying, however, in response to the exchanges we have just had, that I anticipate significant savings. I cannot predict whether we will move from 18.2 members of staff to approximately 10, but savings will be made, because Ofsted has well-established and substantial computer and other systems to deal with its existing regulatory functions. Those systems can be extended to cover independent schools work, and there will no longer be the need for DCSF to retain separate systems.
Staff at Ofsted can be deployed flexibly to cover peaks and troughs across the full range of its operations. It will no longer need to pass information to DCSF for consideration. All deliberative and administrative work can be done within the same organisation, and they can combine regulation of boarding, child care and education in individual schools, cutting down on duplication in cases where different inspectors check broadly similar requirements for different regulators.

Stephen Williams: The Minister has given the impression that this is an act of kindness for the independent school sector, reducing their red tape and the necessary number of engagements with officials in his Department and at Ofsted. If such a neat arrangement is appropriate for the independent sector, why does he not consider legislating to streamline the regulation of the state sector along the same lines?

Jim Knight: Regulation of state-maintained schools is carried out largely by local authorities. There is a separate inspection by Ofsted, which is an important part of regulation, maintenance of standards and accountability in the maintained school system. I do not, however, think that the two are directly comparable, because of the important role of local authorities and their accountability to local communities. I have no reason to doubt Miriam Rosen’s statement to the Committee that the transfer will result in the efficiencies that I have set out. Ofsted has already put in place processes to deal with the regulation of almost 100,000 child care providers and 2,000 children’s homes. Setting aside the strong arguments for reducing bureaucracy, which provide support for the proposals, I will touch briefly on some of the other misplaced concerns that we have heard.
One such concern is that the transfer of registration to Ofsted and the other provisions in part 4 of the Bill are part of a wider process of “Ofsted-isation”—a horrible word—in the independent sector. I want to reassure the Committee on two points. First, I do not see Ofsted-isation in the negative way that the term was meant or in the negative way that it sounds. Ofsted has an outstanding reputation. One need only look at the statistics: last year, about 30,000 inspections were conducted, and there were only 26 complaints to the independent adjudicator. That is the crux of the discussion on part 4. I am striving to put in place a system that will provide a better service to the majority of institutions in the sector. Ofsted will be able to do that, even for ISC schools, whose concerns were fully represented by the hon. Member for Bognor Regis and Littlehampton.
Secondly, I would not want Members to take from my arguments for Ofsted-isation the belief that there are plans afoot to introduce greater regulatory strictures for the independent sector. Part 4 is deregulatory, concentrating operations in bodies that are best placed to deal with them. The Secretary of State will continue to set the standards against which independent educational institutions are judged. I agree that flexibility and choice are important in the independent sector, and that is why clause 90 provides for the Secretary of State to appoint independent inspectorates for groups of independent educational institutions. I am sure that we will discuss that later. The fact that we are willing to let other inspectorates emerge does not smack of Ofsted-isation.
Other arguments against the transfer have intimated that some ambiguous or misleading wording in the consultation documents renders the whole legislation and its rationale invalid. I recognise that some of the wording could be seen as misleading. As soon as the wording—to which there has been reference—on the regulation of the welfare provision was brought to the attention of officials in my Department, the consultation document was altered on the website. However, the whole consultation was not rendered invalid by a few sentences.

Nick Gibb: Will the Minister give way?

Jim Knight: In a minute. May I get my argument out first? The consultation, when read in its entirety, made clear exactly what the proposals were. The Committee will also be reassured to hear that none of the organisations from which we heard evidence missed the consultation. Of the 337 responses received during the consultation on the transfer of registration, 257 were from ISC member schools. To say that those schools were not consulted or that they did not hear about the consultation is palpable nonsense. On 6 July 2007, Mr. Shephard was offered the chance to go through the consultation document with departmental officials. He never took up that offer. As 257 of the 337 responses, many of them in a standard campaign format, were from ISC member schools, I would say that we have had full consultation with that sector. The Independent Schools Inspectorate also responded in full to the consultation.

Nick Gibb: We are talking about the pre-consultation process, not the consultation itself. If the wording in the consultation is wrong, but is given as justification for creating a unified body, when it will not do so, does the Minister not accept that that is not simply a drafting error to be corrected, but exposes a fundamental flaw in the whole thrust of the policy?

Jim Knight: What we were suggesting in the whole consultation was perfectly clear, despite that inaccuracy, which was corrected. I do not accept that the argument stands or falls on that. The hon. Member for Bognor Regis and Littlehampton and I simply disagree.
One further objection to part 4 has been put forward, based on the so-called principle that registration and inspection should be kept in separate bodies. It is not clear to me where that principle is set down. It is certainly not borne out by other examples across the public sector. In the health sector, for example, the Healthcare Commission regulates and inspects private hospitals and independent clinics against national minimum standards set by the Department of Health. To use the ISC’s word, if it is a “referee” that the independent sector is looking for, the sector can, I hope, be reassured.
Part 4 introduces new appeal rights to the Care Standards Tribunal. We plan to extend the role of Ofsted’s independent adjudicator to cover complaints about the quality assurance of independent inspectorates. Ultimately, the Secretary of State, by laying regulations in this House, retains overall responsibility for setting the regulatory regime in the independent sector.

Oliver Heald: The Minister will recall that I asked Ms Rosen about that. How will he accomplish the extension of the role of the adjudicator? Will it be in legislation or is it an administrative act? When will it happen, because it is clearly important that there should be a referee.

Jim Knight: I have just said that the Secretary of State, by laying regulations in the House, retains overall responsibility for setting the regulatory regime. Unless it suddenly occurs to me otherwise, I would answer the hon. Gentleman’s question by saying that we will do that by regulation. The new appeal rights to the Care Standards Tribunal against Ofsted decisions are set out in the Bill. In my view, none of the arguments that have been advanced stand up to scrutiny. Furthermore, I can tell the hon. Gentleman that we do not need to regulate to extend the remit of the independent adjudicator. It is something that we can do with Ofsted without having to legislate.

Nick Gibb: Why then does the Minister not transfer the registration regulation of the whole maintained sector, as well as independent schools, to Ofsted, if it is going to be so efficient and excellent?

Jim Knight: My response would be similar to the one that I gave to the hon. Member for Bristol, West earlier. Most of the regulation of the maintained sector is carried out by local authorities. The arrangements for the independent sector and for the maintained sector are not comparable.

Nick Gibb: Would not the savings be likely to be even larger? Registration and regulation is taking place in 150 local authorities of varying degrees of efficiency, from efficient Conservative to less efficient Labour ones—I say that tongue in cheek, but the point is that there are 150 local authorities around the country. The argument must apply tenfold to the efficiency of transferring that requirement to Ofsted in comparison with the transfer of responsibilities from 18 officials in the Department.

Jim Knight: I am not quite sure whether the hon. Gentleman is proposing that we move registration into local authorities or into Ofsted. We are debating the registration of independent schools by Ofsted.
As a Government, we are committed to rationalising the complex pattern of multiple scrutiny that service providers and some inspectors experience, and reducing the inspection burden and the variety of approaches that are a feature of a system in which many bodies perform similar tasks. The proposals in this part of the Bill achieve that goal. Ofsted will be able to provide a better, more responsive, more cost-effective service to many schools and independent institutions, integrating the different strands of its activity to provide the proverbial one-stop shop that we are so keen to talk about in a variety of settings. In the light of the benefits to the sector that part 4 will bring, I optimistically ask the hon. Gentleman to withdraw his amendment.

Nick Gibb: You will not be surprised to know, Mr. Bayley, that I am not impressed by the Minister’s answer. In particular, I am not impressed by his responses on the consultation process. We are talking about very respectable people: the chief executive of the Independent Schools Council, and Christine Ryan, the chief inspector of the Independent Schools Inspectorate. Both those individuals, and the bodies they represent, are deeply unhappy about the consultation and how it was carried out. The Minister should reflect on that unhappiness. Whether or not those bodies were unified at the time or legally separate is irrelevant. They are unhappy, and the Minister should reflected on that.
According to the transcript of Miriam Rosen’s evidence to the Children, Schools and Families Committee on 12 December on Ofsted’s work, Ofsted was
“surprised by the opposition to these proposals.”
It is that surprise that alarms me. There should not be surprises in Government proposals at this level. Having worked at KPMG for 13 years before coming to the House of Commons, I can say that the one thing that was frowned upon was surprises. It is always a sign of poor management when people are surprised by reaction to a policy. They should have been aware in advance that there would be problems. Had a proper pre-consultation process been in place, there would not have been surprises.
I am not convinced, either, by the Minister’s explanation of the policy. He said that there will be no more regulatory strictures, and that there this will be a more cost-effective service. He said that the Government were integrating the strands of regulation, and that there will be a one-stop shop. If that is the case, it applies most to the maintained sector, which is inspected by Ofsted. I see no reason, on the basis of what the Minister has said, why that should not be the case under the Bill, and why he has not proposed moving the registration and regulation of all 23,000 schools in the maintained sector from local authorities to Ofsted. That system is bound to be more efficient if what he said about transferring the process from the DCSF to Ofsted is as efficient as he said. Perhaps it is the Minister’s view that the DCSF is deeply inefficient, particularly while he is there.

Jim Knight: That is uncharacteristically unkind.

Nick Gibb: It is, and I withdraw the remark. It was an unfair comment.
The thrust of his argument is that DCSF is inefficient in its handling of regulation and registration compared with the way in which that is done in local authorities around the country. That is inconsistent, and does not make sense. None of the policy makes sense. The people who use the current regime think it works marvellously and I do not think we should change things when they are working well. It is extraordinary, and I wonder, echoing the comments of my hon. Friend the Member for North-East Hertfordshire, what the driver is behind this policy. Perhaps the Minister is not aware of what it is. I do not think it is good policy, and it will not lead to efficiencies. I would therefore like to test the opinion of the Committee on amendment No. 124, which simply removes the words “Chief Inspector” from clause 79, and replaces it with the “Secretary of State”.

Question put, That the amendment be made.

The Committee divided.

The Committee divided: Ayes 6, Noes 8.

Question accordingly negatived.

Clause 79 ordered to stand part of the Bill.

Clause 80

Unregistered independent educational institutions: offence

Nick Gibb: I beg to move amendment No. 153, in clause 80, page 49, line 7, leave out ‘51 weeks’ and insert ‘six months’.
A number of the provisions in part 4 repeat provisions from the Education Act 2002. Clause 80 essentially replicates section 159 of the 2002 Act but with changes to reflect the new term “educational institution”. Clause 80, however, prescribes a punishment for conducting an unregulated educational institution as up to 51 weeks in prison. The 2002 Act, even with amendments subsequent to 2002, carries a maximum sentence of six months. Will the Minister explain the reason for the change of policy? Is it to get more people into our jails, which appear to be lacking in customers, or is there a more specific reason?

Jim Knight: The clause provides that anyone who runs an independent educational institution is committing an offence if he operates without registering the institution. It carries over the existing offence from the 2002 Act, in relation to independent schools, and extends it according to this part. I do not believe that the hon. Gentleman is questioning the principle of enforcement of registration; as we have just heard, he is merely questioning the reason for the change.
The clause sets out the maximum penalties that can be imposed on conviction for an offence of operating an unregistered independent educational institution. The 51 weeks maximum sentence increases the sentence of six months. That change simply reflects wider amendments to sentencing law that are set out in the Criminal Justice Act 2003, which extended the maximum sentence available to magistrates courts because short sentences have proved to be ineffective and inefficient in certain circumstances. This is not the right place to debate the sentencing requirements of the 2003 Act. On that basis, I ask the hon. Gentleman to withdraw the amendment.

Nick Gibb: It is important to put that explanation on the record, as the Minister has done. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 ordered to stand part of the Bill.

Clauses81 to 84 ordered to stand part of the Bill.

Clause 85

“Material change”

Nick Gibb: I beg to move amendment No. 53, in clause 85, page 51, line 12, at end insert ‘one or more’.
Clause 86 requires an independent educational institution to apply to Ofsted for approval for any change that is material. “Material” is defined as a change involving any of the items listed in clause 82(3),
“(e) whether the institution provides accommodation for students;
(f) whether the institution is specially organised to make special educational provision for students with special educational needs”
If an institution changes to provide one of those two things, that is regarded as material.
The purpose of this probing amendment is to ascertain whether it would be material change, as specified in subsection (f), if a school catered for just one student with those needs, or whether the school would have to become wholly or mainly involved in special educational needs for it to be regarded as such. My question relates to the definition of what constitutes “material” in subsection (f).

Jim Knight: I will be brief, to help the Committee, and will answer the hon. Gentleman’s question simply. In legal terms, the use of the word “students” in the plural in this context includes institutions specially organised for just one student with special educational needs. The amendment would clarify unnecessarily matters that are covered by the existing drafting. On the basis of that direct, short answer to his direct question, I hope that he will withdraw the amendment.

Nick Gibb: I am grateful to the Minister for that clarification. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 85 ordered to stand part of the Bill.

Clause 86 ordered to stand part of the Bill.

Clause 87

Inspection and report where applications made for approval

Nick Gibb: I beg to move amendment No. 127, in clause 87, page 51, line 24, at end insert
‘if he regards the change to be of such significance as to warrant an inspection,
‘(1A) In determining whether the change is of such significance, the Chief Inspector shall have regard to precedents.’.
The purpose of the amendment is to probe the issue of material change and what would constitute a change that was significant enough to warrant an inspection. The size of Ofsted necessitates that it is a somewhat bureaucratic organisation, so the fear is whether any change reported to Ofsted as the new registration body for independent schools would trigger an inspection, and that relates to the debate that we had about Ofsted-isation.
The purpose of the amendment is to try to get on the record the Minister’s opinion on the degree of change that would need to take place for something to be material, because there is a fear that, once responsibility is transferred to Ofsted, simply reporting a change could trigger an inspection—at the moment such a change would be reported to one of the 18.2 officials in his Department who would record it and the school would just carry on. That is not to say that those schools are frightened of inspection, as they welcome it. They are concerned, however, about the bureaucratic driver of that. If the Minster could give them some reassurance, that would be welcome.

Jim Knight: Clause 87 allows the chief inspector to conduct inspections when considering applications from independent educational institutions for prior approval of material changes. In most institutions, a material change will be the introduction of boarding or a change to become specially organised to make provision for students with special educational needs. Where institutions are specially organised to make provision for students with special educational needs, a material change will be any significant change in their provision, as recorded in the institution’s registered details.
It is particularly important that safeguards are in place to ensure that new boarding provision and any changes to provision for students with special educational needs will not endanger the welfare, health and safety of students. The thrust of the amendment would remove the chief inspector’s discretion to decide whether an institution proposing a significant change should be inspected. It would restrict the chief inspector by requiring her to refer to past cases that may or may not be relevant when considering the merits of a specific proposal.
I get the thrust of what the hon. Gentleman seeks reassurance on, which is that the clause might allow the chief inspector too much latitude to inspect schools for all sorts of minor changes. I can reassure him that approval of a change is required only where the change is material—in other words, in significant cases. Not all changes will require approval, and a large number of changes will not require prior approval. Indeed, for those institutions that are not specially organised to make provision for students with special educational needs, the Bill reduces the number of changes that count as material and so require approval by the chief inspector. They will no longer have to get approval from the chief inspector for a change in proprietor, address, the age range of pupils, the maximum number of pupils or whether the school is for male or female pupils or both. That is further deregulation for us to celebrate.
The only changes that will require approval are the introduction of boarding provision and the change to become specially organised for students with special educational needs. Where a material change is proposed, the chief inspector should have a free hand to inspect when she considers it appropriate to do so, and she should not be restricted in the way that the amendment sets out. I hope that the hon. Gentleman, who is sensible, will withdraw the amendment.

Nick Gibb: I am grateful for that helpful response, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 87 ordered to stand part of the Bill.

Clause 88

Determination of applications for approval

Nick Gibb: I beg to move amendment No. 128, in clause 88, page 52, line 2, at end insert—
‘(2A) Any such other evidence referred to in subsection (2)(B) must be made available to the independent educational institution.’.
Clause 88(2) contains a phrase that is of concern. Paragraph (a) states that in coming to a decision the inspector must take into account
“the findings of any inspection carried out under section 87”,
but paragraph (b) then states that the inspector must also take into account
“any other evidence relating to the independent educational institution standards.”
The amendment would ensure transparency because Ofsted would have to make such evidence available to the school. Again, it is a probing amendment, and if the Minister could provide a little more light on the meaning of that phrase, to alleviate any concerns that might exist in the independent sector, that would be very helpful.

Jim Knight: In deciding whether or not to approve a material change, the chief inspector must take account of the findings of any inspection carried out to consider the institution’s readiness to make the change, and any other evidence available. To help reassure the hon. Gentleman, the evidence may include previous inspection reports, information from fire and rescue authorities about fire safety, information from the Health and Safety Executive and the environmental health authority about the suitability of the premises, confidential information received from parents or others, matters referred to in a criminal background check on the proprietor of the institution, and any other evidence received from police or social services departments relating to the unsuitability of any person working at the institution.
Where the chief inspector is satisfied that the institution is likely to continue to meet the regulatory standards once the changes are made, she must approve the change. If she is not satisfied, she must refuse approval for the change to be made. The chief inspector must inform the proprietor of her decision. Information received from bodies such as the fire and rescue service, the HSE and the environmental health agency would routinely be shared with institutions. The amendment would not change current procedures, which would then reasonably allow those institutions to make the necessary changes to conform. However, confidential information from parents, the Criminal Records Bureau, social services or the police would not routinely be shared for obvious reasons. Disclosure to the relevant institution would be determined according to the circumstances of the case. In some cases it would appropriate; in others, it would not.
I do not think we should fetter the discretion of the chief inspector by requiring her to disclose all the available evidence, regardless of the circumstance. I therefore ask the hon. Gentleman to withdraw his amendment.

Nick Gibb: This was a probing amendment and the Minister has been very helpful in his response. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 88 ordered to stand part of the Bill.

Clauses 89 to 91 ordered to stand part of the Bill.

Clause 92

Duty to inspect certain registered institutions at prescribed intervals

Nick Gibb: I beg to move amendment No. 129, in clause 92, page 53, line 26, at end insert—
‘(2A) For the purpose of subsection (2) the Independent Schools Inspectorate shall inspect independent educational institutions that are—
(a) members of Independent Schools Council associations, and
(b) all other registered independent educational institutions other than schools belonging to the Focus Learning Trust.’.
The amendment would enable the Government to achieve a more unified approach than their proposal to transfer regulation monitoring of independent schools to Ofsted. Its purpose is to keep the registration and monitoring with the Department and instead to unify the inspection by having all non-Independent Schools Council schools other than those which will be inspected by the Focus Learning Trust or the other new inspectorates that the Minister is to authorise inspected by the Independent Schools Inspectorate. That would achieve a unified effect more swiftly than his proposals.

Jim Knight: It will not surprise the Committee that I want to resist this amendment. The debates on part 4 have used the language of choice and flexibility. The argument goes that independent schools should have the flexibility within the basic regulatory regime to operate as their name suggests—that is, independently. Indeed, one witness described a parent’s choice to educate their child outside the control of the state as a human right. I do not fundamentally disagree with the sentiment about choice and flexibility, and that is why I am intrigued by the purpose and effect of the amendment.
Ofsted is the principal inspection body in England. The breadth of institutions that it covers, including a significant number of independent schools, gives it a unique perspective on the English education system. Moreover, public confidence in Ofsted is high. The Government recognise that choice and diversity are important in the independent sector, precisely because it is independent. Parents of children in the independent sector often desire a more tailored and detailed analysis of their school than Ofsted can provide through inspections that focus solely on regulatory standards. That is why the Education Act 2002 enabled the Secretary of State to approve bodies other than Ofsted to inspect educational provision in independent schools.
The Independent Schools Inspectorate has inspected independent schools belonging to the Independent Schools Council for several years. Since 2002, two further inspectorates have been approved. The amendment would exclude one of those. The Schools Inspection Service inspects schools affiliated to the Focus Learning Trust and the Bridge Schools Inspectorate has just been approved to inspect schools belonging to the Christian Schools Trust and the Association of Muslim Schools.
On the other hand, there are a considerable number of schools that choose not to be affiliated to any particular group or organisation and who are not inspected by an independent inspectorate. Such schools are inspected by Ofsted and the Government believe that the option to have Ofsted as the inspection body should be open to all independent schools. The amendment would close off that possibility, replacing Ofsted and the Bridge Schools Inspectorate with one organisation: the Independent Schools Inspectorate. That would remove the choice that independent educational institutions desire. In the light of my compelling reasoning, I hope that the hon. Gentleman will withdraw the amendment.

Nick Gibb: The Minister’s compelling reasoning is that he does not want to create a unified body, which undermines the thrust of the policy behind part 4. However, we have aired this debate at great length and I do not propose to do so again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 92 ordered to stand part of the Bill.

Clause 93 ordered to stand part of the Bill.

Clause 94

Power to inspect registered institution

Nick Gibb: I beg to move amendment No. 130, in clause 94, page 54, line 29, at end insert
‘, or any other standard considered to be relevant by the independent inspectorate.’.
The purpose of the amendment is to ensure that the Independent Schools Inspectorate can look beyond what is specified by the chief inspector. That concern was raised by the ISI in its comments on the clause. It said:
“We would want to look at more than an area which may be specified, if it was appropriate.”
The concern is that this provision might restrict that.

Jim Knight: The clause aims to strike a balance. It will not impose any requirement on the inspectorate to report on standards additional to those specified by the chief inspector. Equally, it will not restrict the freedom of the independent inspectorate to inspect against a wider range of standards than those specified by the chief inspector, if the independent inspectorate thinks it appropriate. The amendment would remove that flexibility by requiring the independent inspectorate to report on additional standards.
Given that the clause does not restrict the freedom of independent inspectorates and that if the Independent Schools Inspectorate wants to add additional standards and inspect against them, it is perfectly at liberty to do so, I hope that the hon. Gentleman will withdraw the amendment.

Nick Gibb: On the basis of that response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 ordered to stand part of the Bill.

Clauses 95 to 97 ordered to stand part of the Bill.

Clause 98

Publication of inspection reports

Nick Gibb: I beg to move amendment No. 131, in clause 98, page 55, line 41, at end insert
‘except for reports of inspections carried out in response to a specific complaint.’.
This is a probing amendment to ascertain the implications of the clause and what happens if a specific complaint against a school led to an inspection and the complaint derived from a confidential matter, perhaps relating to something that happened to a pupil in the school. Will the Minister address that point?

Jim Knight: Inspection reports on all educational institutions are published regularly, so that parents and other interested parties have access to objective judgments about the quality of education provided. Indeed, the provisions of the Bill will add to that information by having Ofsted report on registration of a school, which it currently does not have to do.
Clause 98 follows the established practice in allowing the chief inspector to arrange for the publication of any inspection report she prepares following inspections of independent educational institutions. Under the Bill, the Secretary of State will continue to be able to prescribe the manner in which the chief inspector’s reports are published. The clause does not require, as the hon. Member for Bognor Regis and Littlehampton said, the chief inspector automatically to publish inspection reports carried out in response to a specific complaint, but it gives her the power to do so. That is an important distinction, because it is easy to see a situation where inspectors find no evidence to substantiate a complaint, which may have been made maliciously. In such cases it is unlikely that publishing the report would be appropriate, and the clause gives the chief inspector the discretion to decide not to publish.
On the other hand, there are circumstances in which the chief inspector may decide that it is in the public interest to publish a report, even though it has been prompted by a complaint. For instance, if an inspection stemming from a complaint identified serious regulatory failings, the chief inspector might decide that it would be appropriate to publish the report so that parents were aware of the shortcomings of the institution.

Oliver Heald: Am I correct in thinking that children would not be named in the course of the report—that it would be anonymised, so that the public reading the report would not be aware of embarrassing details about particular youngsters?

Jim Knight: I am confident that safeguards will be in place, as in the normal course of operations—how we report court proceedings and so on—to protect children. I do not have the specific information with me now, but if it is any different to the common-sense arrangement that the hon. Gentleman and I envisage, I will write to the Committee to inform Members of what the situation will be.
On the basis that we have a flexible system, which allows discretion according to individual circumstances, I hope that the hon. Gentleman will withdraw his amendment.

Nick Gibb: On the basis of those words, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 ordered to stand part of the Bill.

Clause 99 ordered to stand part of the Bill.

Clause 100

Power of Chief Inspector to take enforcement action

Question proposed, That the clause stand part of the Bill.

Nick Gibb: The clause relates to the power of the chief inspector to take enforcement action. Subsection (4) says that:
“the Chief Inspector has, during the period of three years before the enforcement action is taken, required the...institution to submit”
an action plan. The comment of the Independent Schools Inspectorate is that, for such a school, that seems like a long period in which to require an action plan and to allow the school to languish in that condition. Will the Minister say why the figure of three years was put into the clause?

Jim Knight: The clause sets out the circumstances in which the chief inspector may take enforcement action—under clause 101, which we are about to come on to—against the proprietor of a failing independent educational institution. In order to take enforcement action, the chief inspector must be satisfied that the institution is failing to meet one or more of the regulatory standards. However, to take enforcement action, one of two conditions must first be met.
First, the proprietor must, as we heard, in the previous three years have been required to submit at least one action plan, setting out how the regulatory failings would be dealt with. Where that action plan was not submitted by the required date, was rejected by the chief inspector, or was approved but later not complied with, the first condition is met. Alternatively, where the proprietor was required to submit an action plan at least two years previously, and at least one inspection has taken place since then and the chief inspector is satisfied that at no time in the two-year period has the institution met all the standards, the second condition is met.
The problems identified would not necessarily be allowed to go on for three years, but it is important that schools be given time to put an action plan in place. Three years is the period in current practice, but it would be extremely unusual for Ofsted to allow a situation to carry on for that long. I will reflect on whether three years bears my scrutiny. If I do not raise the matter on Report and the hon. Gentleman wishes to do so, I will come back with the answer as to why three years is right. Indeed, I might even write to him and to the Committee if I believe we need to set things out in more detail. As I understand it, however, the clause simply reflects the present situation.
The clause carries forward provisions in existing legislation, but amends them to allow enforcement action to be taken where institutions do not sustain previous improvements or fail to meet all the regulatory standards. It is essential that action be taken, and I hope we can agree that the clause stand part of the Bill.

Nick Gibb: The provision contradicts the very welcome policy in the Education and Inspections Act 2006 that brings about closure of a poorly performing school within 12 months. I welcome the fact that the Minister will reflect further.

Question put and agreed to.

Clause 100 ordered to stand part of the Bill.

Clauses101 to 114 ordered to stand part of the Bill.

Clause 115

Directions under section 113: information

Jim Knight: I beg to move amendment No. 207, in clause 115, page 64, line 29, leave out ‘in connection with the Secretary of State’s functions’.
Mr. Bayley, listening to you read the numbers of the preceding series of clauses made me think that if you need another job, bingo calling might be the one for you.
Clause 115 carries forward provisions already in place in existing legislation. It enables the sharing of information between relevant authorities to prevent an unsuitable person from working with children by participating in the management of an independent educational institution. Relevant authorities are the chief inspector, the Secretary of State, Welsh Ministers, the Independent Barring Board and the General Teaching Councils for both England and Wales. This will assist relevant authorities to discharge effectively their statutory functions to protect children and vulnerable adults from those who might cause them harm.
The amendment allows the Secretary of State to share with the authority responsible for making the direction under clause 113 any information which may be relevant to consideration of a direction to prohibit a person from participating in the management of an independent educational institution. It will bring consistency between England and Wales and allow the Secretary of State to share any information that may be relevant.

Amendment agreed to.

Hugh Bayley: I did not want to interrupt the Minister in full flow, but as an accomplished and experienced part-time bingo caller, I should remind him that numbers above 100 do not appear on the bingo card.

Clause 115, as amended, ordered to stand part of the Bill.

Clause 116 ordered to stand part of the Bill.

Clause 117

Providers of independent education or training for 16 to 18 year olds

Question proposed, That the clause stand part of the Bill.

John Hayes: I felt it was important to say a word about this clause on the grounds that we have not said anything on clause stand part for a long time. We do not want it to be thought that the Committee is not scrutinising the Bill with appropriate diligence.
According to the explanatory notes, clause 117
“enables regulations to be made allowing for any part of this Chapter to apply to this particular group of learning providers”—
the learning providers in question being independent providers of education or training for 16 to 18-year-olds. Clauses 117 and 118 deal only with those organisations. However, the explanatory notes go on to explain that this group of providers
“do not receive any state funding from the LSC.”
Is it really necessary to regulate the sector further? Is there any evidence that those providers are failing to safeguard the health, safety and welfare of young people? If not, and the current regulatory regime works for them, why do we need to change it? We should never legislate unless there is a proven need to do so. I look to the Minister to establish that proven need in the mind of the Committee.

Jim Knight: Those who have been listening and who might have wondered why we did not talk about previous clauses may be reassured to know that in large part they repeat what was in previous legislation, but in respect of the transfer of functions.
The hon. Gentleman raises an important point about why we should worry about standards or requirements beyond ordinary health and safety law for those providers of education for 16 to 18-year-olds. There are important minimum regulatory standards that we should put in place beyond health and safety, particularly in respect of child welfare and child protection. This is a good opportunity to do so.
In placing a new duty on all young people to continue to participate in education or training until they are 18, it is right that we take the power to set standards to ensure that they are healthy, safe and supported wherever they choose to fulfil the duty that we discussed at such length under part 1. In many ways the provision is not a response to any specific evidence that there is a failure on the part of those providers. It is much more a consequence of raising the participation age through part 1. I hope, on that basis, that the Committee will support the clause.

John Hayes: I simply say to the Minister that it would perhaps be useful if he could give us some idea of the history in this area—not now because I would not expect him to have this sort of information at his fingertips. If no concerns have been expressed about the way the system operates now and if there is no record of problems relating to child protection, health and safety and welfare, the only grounds I can see for introducing the clause is to establish consistency. That may be sufficient of itself, but it is important to know whether that is the only basis on which the proposal is being made.

Jim Knight: It is about slightly more than consistency. As we have discussed, new forms of provision will be developed by various organisations from the third sector and elsewhere to engage people who are particularly difficult to engage. There will be an expansion of provision in an area where there are no statutory duties in respect of safety and well-being. Consequential to raising the participation age and to all the extra provision, it is also important—beyond the need for consistency—to lay down statutory duties to safeguard the well-being of the especially vulnerable people we want to engage. Any regulations laid, however, will be dealt with through the affirmative procedure, after consultation, as set out in clause 118(2). We might go on to discuss that if anyone is minded to do so. I hope that that gives the hon. Gentleman—and the rest of the Committee—reassurance.

Question put and agreed to.

Clause 117 ordered to stand part of the Bill.

Clauses 118 to 124 ordered to stand part of the Bill.

Clause 125

Function of approving schools transferred to Chief Inspector

John Hayes: I beg to move amendment No. 154, in clause 125, page 69, line 4, leave out subsection (2).

Hugh Bayley: With this it will be convenient to discuss amendment No. 155, in clause 127, page 69, line 33, after ‘Inspector’, insert ‘or the Secretary of State’.

John Hayes: We now have an inordinate length of time to discuss the amendments. The clock is only at 10 to 3.

Hugh Bayley: We have only one hour and eight minutes.

John Hayes: Indeed, Mr. Bayley. I would not want the whole of it, but an hour or so might be reasonable. The Minister might feel that that is appropriate when he hears the gist of my proposal.
Clause 125 amends section 342 of the Education Act 1996 and transfers the function of approving non-maintained special schools in England from the Secretary of State to the chief inspector. The amendment would remove the transfer effected by clause 125(1).
According to the latest departmental figures that I have, there are 70 non-maintained special schools in England. According to the Office for National Statistics, the number of pupils at those schools declined from 5,000 in 2003 to about 4,720 in 2007.

Jim Knight: The hon. Gentleman says that, according to departmental statistics, there are 70 non-maintained special schools. In response to an intervention in, I think, the Committee’s third sitting, I said that there are 74. My aim is to ensure that the facts are correct, and it may help the Committee to know that I am now reliably informed—after considerable checking—that the figure is between the two, at 72. I apologise if the Committee feels that it was misled at any point.

John Hayes: As that is halfway between the Minister’s original assertion and my figure, that seems a pretty good deal. It is a balanced figure, and it is reassuring to know that, with all the resources available to them, Ministers can get such figures wrong by two, while my hon. Friend the Member for Bognor Regis and Littlehampton and I, with limited resources, were only two out as well.
Conservative Members have long had an interest in special educational needs provision and we have a strong commitment to the principle of special schools. I first became involved when, as a county councillor in Nottinghamshire in the 1980s, I was a fierce opponent of the Warnock report and the Act that followed it—passed by a Conservative Government I hasten to add. That Act encouraged the wholesale integration of children with special needs into mainstream schools. I understand that the present Government remain committed to a policy of including as many children as possible in mainstream schools. Partly as a result of that, about 93 special schools have closed since 1997.

Jim Knight: I shall not rehearse the statistics that show that more special schools closed under the previous Government than under the present one. Such decisions are made by local authorities. It is not our policy to ensure that as many children as possible are educated in maintained schools. The hon. Gentleman must understand that we are opening new special schools all the time and that we want to ensure that pupils get the provision that is appropriate to their needs.

John Hayes: The Minister might be right to say that there has been something of a change of heart in recent years. However, when I held the job of my hon. Friend the Member for Bognor Regis and Littlehampton as the shadow Schools Minister, I remember fighting a very fierce battle to ensure that children with special educational needs were adequately dealt with in the mainstream. Too often, in the specifics and the quantum of the provision made there, education for such children is found wanting. I remain concerned that in particular parts of the country there is an erosion of special educational provision, which is critical for those children. In some areas there is a mix of provision and parents can chose between placing their child in a special school or integrating them into mainstream education; but that option does not exist in many places in Britain.

Angela Watkinson: Something I gleaned from the many years that I worked in a special school is that there needs to be flexibility between mainstream schools and special schools. Some pupils who fail in mainstream schools will flourish in a special school and there are children in special schools who would like to try to survive in a mainstream school. There must be flexibility in the system to provide for those circumstances.

John Hayes: Even mindful of your generosity, Mr. Bayley, I do not want to stray too far from the specifics before us. However, my hon. Friend is right because there is often a misconception that special educational needs are static. In fact, they are dynamic because of the changing educational circumstances of the child and because of their difficulties. Their disability may be a dynamic one and their learning difficulties may change over time. It is therefore important that there is a lot of fluidity in the system. For some children, mainstream provision will be more appropriate some of the time and at other times in their educational life special provision will be more appropriate. That point is not often made and certainly not made as well as it was by my hon. Friend.
I remain concerned about the erosion of special education. Even Baroness Warnock, whom I mentioned earlier and whose report in 1978 started the process of inclusion, said that her policy has backfired, leaving, in her words, “a disastrous legacy”. According to a survey for The Times Educational Supplement in 2005, teachers believe that up to 25,000 children in mainstream education in England and Wales would be better off in special schools. The survey also found that four out of five teachers and head teachers favour an end to special school closures.
That survey and others also reveal the paucity of training for most teachers in mainstream schools, although they may well have an interface with children with special needs. Too frequently, teachers are ill equipped to deal with the challenges that we offer them.
I have three excellent special schools in my constituency: the Garth school, the Priory school and Gosberton House school, of which I am immensely proud. I make no apologies for, once again, through the amendment, elevating the importance of special schools and championing the case of special needs children. I hope that the Minister will say a word to reassure those of us who believe that the education of children with special needs must be and deserves to be a high priority for the Government and this House, and should play a central part in the provisions of the Bill.

Hugh Bayley: Although, in moving the amendment, Mr. Hayes made a fairly broad speech, I remind members of the Committee that the clause relates to the approval of non-maintained special schools. We cannot have a wide-ranging debate about the Government’s policy on special schools as a whole.

Jim Knight: I am mindful of your words, Mr. Bayley. I am mildly frustrated that that constrains me in responding properly to the hon. Gentleman and reminding him, for example, that funding for all pupils has increased by £1,440 per pupil since 1997 and that there has been a real-terms increase in funding for special educational needs pupils of 66 per cent., or of other such facts such as that 18,000 children are taught in specially resourced provision within or attached to mainstream schools, and that we have built or re-built more than 100 new special schools in the past 10 years. However, I shall address myself to the amendment to stay within the advice that you have given us, Mr. Bayley, and resist any interventions that might divert me further into responding generally on special educational needs provision.
It may help to explain to the Committee why we are proposing to transfer the responsibility for the approval of non-maintained special schools to the chief inspector. Non-maintained special schools are inspected on an ongoing basis, under exactly the same arrangements that apply to maintained special schools. The chief inspector is responsible for the ongoing inspection of all maintained and non-maintained special schools. She is also responsible for determining whether a school meets the required standards for notifying the Department where intervention action is required, and for monitoring schools requiring intervention to ensure that improvements are made and required standards are met. Given the wide and expert role that Ofsted has built up in relation to special schools, it is entirely sensible that she should also have responsibility for the approval of non-maintained special schools under section 342 of the 1996 Act.
Our consultation shows that the main organisation representing non-maintained special schools agrees with our proposals. The National Association of Independent and Non-Maintained Special Schools states:
“Given that it is current DCSF practice to refer most decisions on registration and monitoring to Ofsted, the proposal does make logical sense.”
Amendment No. 154 would reject the transfer of the general approval function to the chief inspector, but continue with the transfer of approving school-specific arrangements. It would split approvals between the Secretary of State and the chief inspector, creating a much more complicated system than either that currently in place or that proposed in this chapter of the Bill. The intention is that the chief inspector will have responsibility for the general approval where a school meets the required standards and responsibility for approving the school-specific arrangements. Those arrangements will put functions where the expertise exists and ensure that institutions need only deal with one body.
Amendment No. 155 would allow regulations made under clause 127 to provide for the Secretary of State, in addition to the chief inspector, to apply to a justice of the peace for an order to close a school in an urgent case. As I have said, the aim of the chapter is to simplify the regulatory regime, concentrating the powers of intervention, monitoring and inspection of non-maintained special schools where the expertise lies.
The amendment would confuse that process and would be counter-productive for two reasons. First, a two-tier approach may delay proceedings. The rationale for having the provision to make emergency orders is to act quickly. Providing for the Secretary of State to apply for an order would dilute the clarity of functions that the Bill introduces and potentially delay an order being made because of confusion as to which body should act. Secondly, it would be the chief inspector who possesses the necessary evidence to support an application to the justice of the peace, and it is therefore logical that she should have that power on her own.

John Hayes: Clearly, the point of amendment No. 155, which I did not speak to because I felt it spoke for itself, is that it provides a degree of parliamentary accountability and scrutiny. How will that be provided if it is not added to the Bill?

Jim Knight: The chief inspector and Ofsted are accountable to Parliament through the Select Committee on Children, Schools and Families. The chief inspector also responds to parliamentary questions through me, in writing, and I have never received any complaints, given that I look at those responses as they go out, as to how that system operates. I think that there is sufficient accountability for Her Majesty’s chief inspector, and I hope that the hon. Gentleman will withdraw the amendment.

John Hayes: The Minister has given a plausible explanation for the policy, and I was able—with your indulgence, Mr. Bayley, for which I am grateful—to make another appeal for special needs education and special schools. With regard to amendment No. 155, I think that there is an issue about parliamentary accountability, which the Minister might reflect on and perhaps consider making some kind of report on to Parliament. On balance, given what we have heard, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 125 ordered to stand part of the Bill.

Clause 126

Right of sixth-form pupils to opt out of religious worship

Question proposed, That the clause stand part of the Bill.

John Hayes: The explanatory note in relation to clause 126 makes it clear that
“The 1998 Act as amended by the 2006 Act provides for a sixth-form pupil in a maintained school to withdraw from religious worship. This clause obliges the Secretary of State to make regulations to afford the same rights to sixth-form pupils in non-maintained special schools.”
Like the Government, we support the right of someone, post-16, to withdraw from religious study. After all, it is compatible with other decisions made by this House on the rights that young people have and are competent to enjoy at the age of 16.
However, is it not ironic that the Government believe that a person at 16 or 17 should be empowered to withdraw from religious study because they are competent to make that decision, yet do not believe that someone is competent, at that age, to make a decision on whether they should participate in education per se? It is the Government’s contention that it is okay for someone at the age of 16 to say that they do not want to study religion, but not okay to say that they do not want to study everything else.
That seems to me at best paradoxical and at worst something altogether less desirable. Surely, it is a contradiction which strikes at the very heart of the purpose of the Bill. As the issue of compulsion has informed our discussions from their beginning until now—almost the end—I could not resist the temptation to raise the issue again. We all want the ideal life for young people, do we not? We want a life that is both “full and reasonable”—
“a life to which the perception and creation of beauty, the enjoyment of real pleasure that is, shall be felt to be as necessary”
to young people “as their daily bread.” I finish in those words of William Morris and I am sure that the Minister will respond in kind.

Hugh Bayley: Mr Jim Knight, to respond in his own words or those of William Morris, as he pleases.

Jim Knight: I think I will use my own words on this occasion and I apologise to those who were wanting more excerpts from the “Dictionary of Quotations”, or even the original source, because we all know that the hon. Gentleman is fond of bringing the original tomes into Committee and referring to them, as we have seen throughout our proceedings.
The current regulations for non-maintained special schools require religious worship and religious education to be provided for pupils in those schools unless their parents express a wish that they not do so. The Education and Inspections Act 2006 amended legislation for maintained special schools so that sixth-form pupils in those schools have the right to withdraw from religious worship. All we are seeking to do in this clause is to afford those same rights to sixth-form pupils in non-maintained special schools as exist in maintained special schools. There is no justification for treating sixth-form pupils differently just because they attend a different type of special school.
In making this change, we are not only achieving consistency but, in respect of the hon. Gentleman’s point, being consistent in saying that young people have a duty, that they are of sufficient maturity to be able to understand and fulfil that duty, and that we therefore similarly believe that they are of sufficient maturity to make up their own minds as to whether they want to participate in religious education and worship. I hope the Committee will support this clause.

Question put and agreed to.

Clause 126 ordered to stand part of the Bill.

Clauses 127 and 128 ordered to stand part of the Bill.

Clause 129

Abolition of requirement of approval for independent schools: England

Question proposed, That the clause stand part of the Bill.

Nick Gibb: The Independent Schools Council has raised concern about the clause, which abolishes the concept of approved independent schools under section 347 of the Education Act 1996. The ISC points out that approved status
“provides parents with the assurance that a section-347 school can meet the needs for which it is approved and in which it specialises.”
In the July 2007 consultation document, the Government say:
“Section 347 of the 1996 Education Act created two categories of independent schools, approved and non-approved schools. Approved schools cater wholly or mainly for pupils with SEN, and are required to meet additional standards. For this reason, local authorities are able to place pupils in these schools without seeking consent from the Secretary of State. The standards were originally needed because independent school standards were not in the past set out in a way that was helpful for special schools.”
They go on to say:
“Since the Education Act 2002, higher standards have been set for the independent sector as a whole ... We believe these new standards, together with an improved inspection framework ... remove the need for a separate category of approved independent schools.”
It will then be for the local authorities to assure themselves of the quality of independent special schools that they use to provide education for children with special needs.
In its briefing to the Committee, the ISC points out:
“We are concerned that most local authorities will not have sufficient resources to enable them to take on the responsibility, effectively, for assessing and monitoring the school as well as the individual placement. At the moment, if a school is approved, the local authority need not concern itself with...the organisation or standards at the school: it simply needs to consider whether it can meet the child’s needs...Should local authorities have the resources to carry out this new responsibility, they may seek to impose further burdens on schools”—
that is, of course, if they have the capacity to carry out their individual assessments. It goes on:
“If local authorities believe that they have additional duties to vet such schools, there is a danger that they will impose additional checks (quasi-inspections) and requirements on these schools which could adversely affect their independence and increase the costs”.
The ISC also points out in its written submission that
“none of the schools approved under”
section 347 which are part of the ISC’s membership,
“or, indeed, any other s. 347 schools”
which are not ISC members
“has requested any change to the existing system of approving schools or individual placements...ISC would therefore question the need to make any changes to a system which is functioning well—our schools believe that the Department’s team dealing with s 347 approvals provides an excellent service—and has not experienced any significant problems.”
That is praise indeed, again, for the Minister’s Department. Paragraph 59 of the written submission says:
“Schools see their s 347 approval as a quality standard or kite mark which assures everyone”.
Therefore, removing
“this approval mechanism, takes away this quality assurance”.
The ISC makes clear that the approval regime was introduced in the Education Act 1981, in response to recommendations in the Warnock report, to which my hon. Friend alluded. That report was critical of the unregulated nature of local authority placements in independent schools. The ISC goes on:
“There is, therefore, a serious concern that by removing the s 347 approval mechanism, there may be a return to the previous system, which was found to be in need of reform.”
There is a wider debate to be had about the tendency of many local authorities, for reasons of cost and sometimes of ideology, not to place children with special needs in special schools, or at least to put barriers in the way and make it difficult for all but the most persistent parents to obtain an assessment or statement of special educational need and to get the placement that they seek. Therefore,
“In one respect, ISC recognises that the proposals may enable local authorities to place children with statements of SEN in a wider range of independent schools...However ISC would...fear that...local authorities in practice would take the opportunity presented to reduce the number of placements in the independent sector...or there could be an increase in the number of students placed inappropriately at schools which...may not offer the safeguards of specialism and quality present under the current s 347 approval mechanism.”
That is a real danger, given that there is already a tendency in local authorities to resist sending or allowing parents to send their children to special schools, whether in the independent or the maintained sector.
The ISC makes the further important point that the special educational needs and disability tribunal
“can only name the school if it is approved or if the Secretary of State gives consent for the individual child to attend...If, in the future, the local authority will be solely responsible for deciding whether a school is suitable for a particular child, we would argue that this creates a significant conflict of interest and places in the Tribunal in an impossible position. It would seem inequitable for an authority to, in effect, defeat an appeal against its decision by saying that it does not consider the parent’s preferred school as suitable and that the Tribunal, therefore, could not place a child there in any event. On the other hand, the tribunal is unlikely to have sufficient evidence to allow it to assess whether the local authority’s judgment about the school is sound”.
There are multiple concerns expressed by the ISC which I have had the pleasure of conveying to the Committee. The Minister needs to think again about whether something that is working well should be removed and abolished for whatever reasons he has for making this proposal in the first place. I look forward to hearing his response to the ISC’s genuine concerns.

Jim Knight: I am hugely grateful to the hon. Gentleman for his praise of my Department’s officials, who indeed do a fine job. The proposals to transfer this function are no reflection on their professionalism or capability.
The requirement for independent schools to meet additional conditions of approval when local authorities are considering placing children with statements of special educational needs was carried forward in the Education Act 1996. At the time, that was intended as a means of protecting the most vulnerable children with SEN. The introduction of the independent schools standards in 2003, which all independent schools have to meet, has seen a marked improvement in the standards that apply across the board in the independent schools sector. Indeed, the standards against which all independent schools are judged—this is the significant issue—are now higher than those set out for approved schools. The requirement to seek approval which marks out the separate category of school is therefore simply legal and bureaucratic. It fulfils no function whatsoever in providing additional safeguards for children with special educational needs.
In respect of burdens on local authorities, under current legislation, a local authority has to decide whether an independent school is a suitable placement. The fact that an independent school is approved under section 347 does not reduce an authority’s work in determining whether it is a suitable placement for that individual. That duty on local authorities will not change with the proposed changes in the Bill. They will still be able to access lists of independent schools that are specially organised for pupils with SEN, describing what type of SEN the schools cater for. They will then have to determine whether a school can meet the individual needs of the child.

Nick Gibb: I accept that point, but assessing whether the school is a suitable institution for the child to attend is different from having to assess the quality of a school. That places a whole new burden on local authorities. They do not just have to ask whether a particular type of school is right for a child with these particular special educational needs. They now have an additional burden placed upon them to assess whether that school is a good-quality school per se.

Jim Knight: Perhaps the hon. Gentleman, who I know is assiduous, missed my point that all independent schools will have met the standard for all independent schools, which is higher than that required for an approved school. The local authority therefore does not need to concern itself about the standard but simply about whether the school is appropriate for the individual child. The proposed changes will, however, remove the need for a local authority to seek consent from the Secretary of State to place a child with special educational needs in an independent school. Under current legislation, around 700 requests are received from local authorities seeking consent from the Secretary of State for placements. The changes proposed in clause 129 will remove this burden on local authorities and we estimate that the documentation to support a request for consent takes 350 days a year of local authorities’ SEN officers’ time. This equates to a monetary saving to local authorities of approximately £120,000 per year.
The requirement for a local education authority to seek consent from the Secretary of State to place a child with a statement of special educational needs in an non-approved independent school is an unnecessary administrative burden.
There are safeguards in place for parents of children with statements of special educational needs. Where there are disagreements between parents and local authorities about provision and placements of children with SEN, parents have the right of appeal to the special educational needs and disability tribunal. Decisions of the tribunal are binding on both parties. The tribunal would still need to be satisfied that an independent school was appropriate for the child. SENDIST already considers that and does not rely on the mere fact of approval, for all the reasons I set out. The tribunal stands in the shoes—to adopt a colloquialism—of the local authority for that purpose. 
I am confident that the existing statutory duties of local education authorities for children with SEN, together with the strengthened guidance and improved standards for the independent sector as a whole, remove the requirement for a separate category of independent school and for local authorities to seek consent for a child to be placed in an independent school. I hope that the Committee supports the clause.

Question put and agreed to.

Clause 129 ordered to stand part of the Bill

Hugh Bayley: It is my job to do what I can from the Chair to protect the rights of all Members. I notice that there are still five groups of Government amendments on the Order Paper for discussion. These will be put to a vote, whether or not we have a debate on them. There is also one further group of Conservative amendments, Liberal Democrat amendments and four groupings of Liberal Democrat new clauses. We have just over half an hour to go, so if colleagues want to ensure that all Members have the opportunity to put proposals, we must make progress as quickly as we can.

Gordon Marsden: On a point of order, Mr. Bailey, I seek your guidance on clause 133. Some weeks ago, I tabled amendment No. 161, which would omit clause 133. If my memory serves me correctly, it originally turned up as an amendment on the selection list. It is not there now so I seek your guidance on how you plan to deal with that.

Hugh Bayley: The amendment was to leave out clause 133. Amendments to leave out a clause are ruled out of order because the mechanism for a Member to achieve that aim would be to speak against the clause standing part of the Bill. With the leave of the Committee,

Clauses 130 and 131 ordered to stand part of the Bill.

Hugh Bayley: Given the confusion this morning, it might be convenient for Members on both sides of the Committee if I say that my reading of amendment No. 186, which is out of order, is that it is the Government’s intention to oppose the motion that clause 132 stand part of the Bill because they intend, at a later point, to move that a replacement clause, new clause 6, is opposed.

Clause 132

Powers of National Assembly for Wales

Question proposed, That the clause stand part of the Bill.

Hugh Bayley: With this it will be convenient to take Government new clause 6—Powers of National Assembly for Wales.

Jim Knight: It is our intention to seek to remove clause 132. We do not support clause 132 and, at whatever point you wish me to, I would want to move Government new clause 6.

Hugh Bayley: If you wish to speak to it, you should speak now. You will formally be asked to move it when we get to that point in the Bill.

Jim Knight: I have already referred to new clause 6 in previous debates, so I do not need to detain the Committee simply to say that we are adding two new framework powers. The reason for replacing clause 132 with new clause 6 is to bring in the second framework power and merge them into one clause, which is neater in drafting terms. That is the basis for that particular change.

Nia Griffith: It gives me great pleasure to add a comment on Government new clause 6 as we approach St. David’s Day and have this opportunity to celebrate the devolution settlement in Wales. Members of the Committee will be aware that there are a number of ways in which the National Assembly for Wales can exercise its powers. With a Bill such as this, it can use framework powers to introduce similar measures in Wales. It is entirely appropriate that the Assembly should have that option and I know that many people in Wales will be looking eagerly to the Assembly to determine how the issues that we have debated at much length here will be dealt with in Wales. Given the time restraints, I leave my comments there.

Jim Knight: I am grateful to my hon. Friend the Member for Llanelli for raising this matter. Naturally, I do not seek to interfere in matters Welsh where it is inappropriate for me to do so, but I will certainly reflect on what she said. I will pass on and discuss the comments with the Under-Secretary of State for Wales and, if we think it appropriate to address this on report, we certainly will.

Question put and negatived.

Clause 132 disagreed to.

Clause 133

Power of governing body: educational provision for improving behaviour

Question proposed, That the clause stand part of the Bill.

Gordon Marsden: I am grateful for your guidance, Mr. Bayley, and apologise if I caused any unintended confusion. I very much wanted to speak on this clause and associate myself with concerns that have been expressed by the Special Educational Consortium and the National Autistic Society about the clause as currently drafted .
We should at least consider whether the famous parliamentary law of unintended consequences might at some stage come into practice with this provision. The clause will formalise the practice whereby school governing bodies direct students, including students with special educational needs, to attend alternative forms of provision to improve behaviour. Who, one might say, could be against that process? But the Special Educational Consortium has real concerns that formalising that practice will lead to students being removed from schools without proper consideration of the impact of their special educational needs on the behaviour concerned.
Obviously, the SEC, like myself, welcomed the proposal to extend the requirement to stay in education or training to the age of 18—not least because of the potential benefits this will bring to young people with learning difficulties and special educational needs. But the plain fact is that statistics show that many disabled students and those with special educational needs are already out of school by the age of 16 as a result of exclusion, both formal and informal. Many more pupils in that area have poor experiences of education. 
The Liberal Democrat spokesman on this matter and I were colleagues on the former Education and Skills Select Committee, and we know from its inquiries on SEN and bullying how this can be a particular issue. The statistics are frightening. There are eight times as many exclusions of pupils with special educational needs as of pupils without them, so one has to ask to what extent do official exclusions create a problem?
There is very clear guidance set by the Department that such exclusions are illegal. The guidance also recommends that, where all else fails, the school should seek a statutory assessment or, for a pupil with a statement, an early annual review. Again, the fact is that the high level of exclusions of pupils with SEN suggests that those recommendations are not being followed, so the SEC wants more effort and more measures to keep disabled pupils and those with SEN in school, with a better experience of school.
An important factor to take on board here, I am sorry to say, is the very mixed reputation of some of the pupil referral units to which children with SEN go. I make no comment on any particular ones, or any particular areas, but, nevertheless, the mere fact that children with SEN can be referred to pupil referral units in company with young people who are there for very different reasons, in very troubled circumstances, can also cause a problem.
Those concerns are shared by the National Autistic Society, which has also written to me. I declare an interest, because the issue of autism, particularly Asperger’s syndrome, is one that I had to deal with several times in this respect in my own constituency. It says that the number of children with autism who have been excluded, and excluded repeatedly, is worrying.
It is worth saying again that the school environment throws up a range of challenges for pupils with autism, including those with Asperger’s syndrome, particularly at secondary level. The NAS rightly reminds us that environmental triggers and disruption to routine can lead to high anxiety in terms of peer relationship, bullying and low self-esteem. The classic pattern for children with autism who exhibit such challenging behaviour is that stress built up from low-level bullying can often trigger a sudden disproportionate response. That is the so-called row in the dinner queue syndrome, to which Lord Adonis and others have referred.
The NAS asks for appropriate safeguards to ensure that any underlying factors that contribute to the behaviour are considered before a child is removed from the school premises. The NAS and the SEC are concerned that one of the unintended consequences of the clause is that the Bill does not make it clear whether removing the pupil from the school premises would be regarded as an exclusion or disciplinary penalty, as defined by the Education and Inspections Act 2006, in which case safeguards would apply.

Oliver Heald: When the hon. Gentleman was making his points about pupil referral units, I was not entirely clear whether he was making a distinction between different kinds of special needs. I was once a governor of a special school where the youngsters were EBD— emotionally and behaviourally disturbed—and of course, their behaviour was difficult. I have also been a governor of a school where the pupils had MLD—mild learning difficulties—and they were quite different cohorts. Is he distinguishing between the two when he talks about special needs?

Gordon Marsden: The hon. Gentleman is right to point out that there are a range of differences, and I observe those distinctions. The point that I was endeavouring to make is that it can be catastrophic if someone with a severe autistic disability such as Asperger’s is referred to a unit that other young people attend for totally different reasons. That is one of the factors that should be taken into account.
I understand that there is a suggestion that in some circumstances there would be a review mechanism, through regulations made under the Bill, after a period of time. The problem with that is that, especially for the sort of young people whom I am talking about, if they are referred inappropriately to such establishments, the effects on that young person could be catastrophic, particularly if they have to remain there for some three or four weeks before it is established that that is an inappropriate place for them to be. Therefore, if the Government intend to continue with clause 133 in its current form, the NAS and SEC would at least like consideration to be given to a proactive statement in that respect, rather than a reactive one some 20 or 30 days later. It is not a question of challenging the motives and the intentions, but of considering the possibility of the law of unintended consequences. I urge Ministers and their officials to reflect on the real concerns that have been expressed by the organisations concerned, which I am articulating today.

John Hayes: It is a reasonable test of a civilised society that we should judge how it deals with its most vulnerable citizens. Children with special educational needs are among the most vulnerable. The proposals and briefings of the NAS and the SEC have done the Committee a great service. I pay tribute to them and their work. I am grateful for the chance to follow the hon. Member for Blackpool, South who has also highlighted their comments.
It seems to me that the issues are these. The clause makes some sensible provisions about exclusion, but the NAS and SEC wish for the particular circumstances that affect so many children with special educational needs, particularly children with learning difficulties, should be taken into account in the application of those provisions. Understandably, they suggest that we strike out the clause. I am not sure that that is the right solution because it would get rid of what are sensible provisions for most purposes and in most circumstances. In responding, the Minister needs to have a convincing answer as to how children with special educational needs are to be dealt with, particularly those children whose cases the NAS and SEC have highlighted.

Angela Watkinson: Does my hon. Friend agree that subsection (1) of proposed new section 29A of the Education Act 2002 requires any registered pupil to attend any place outside the school premises for educational provisions to improve their behaviour? Is not the ideal situation to have a separate place within the school in the pastoral care department? There a child with special needs is not in a position to disrupt the education of their peers, but has a place within familiar surrounds, within the school building where they can have correctional improvements and treatment.

John Hayes: My hon. Friend may have seen that kind of provision working in her constituency, as I have in mine. She is right that there are circumstances where it is much better to isolate the child but not outside the school premises, with all that that means. That may be particularly true with the kind of children that the hon. Member for Blackpool, South spoke of and that the organisations that I mentioned champion.

Oliver Heald: Does my hon. Friend think that another problem is that there has been a cutback in special schools and that for some pupils with EBD a special school is a good option? It would be wrong for a child of that sort to end up in a pupil referral unit, when they actually need specialist support.

John Hayes: I intend to speak about EBD at some length. My hon. Friend is right. The biggest growth in statements is in EBD. The number of children with emotional and behavioural difficulties seems to grow inexorably. Almost by definition, there are discipline issues associated with those children; they are challenging in the classroom and difficult to teach. It is essential that we get the regime right within mainstream schools, where we have children with those challenges, and that we are clear about when it is better for those children to be educated elsewhere.
There are other groups of children as well as those with emotional and behavioural difficulties that fall into that category. I am mindful of children and young people with acquired brain injury, who display some of the characteristics typical of children and adults with autism, like the inability to concentrate, inappropriate behaviour and difficulty forming relationships. Those are features of people with acquired brain injury, which sometimes make it difficult for them to interact with people supervising them and with their peers.
The hon. Member for Blackpool, South mentioned this point, but it is worth amplifying. The National Autistic Society emphasises that autistic children are frequently bullied. That bullying can lead to a disproportionate reaction on their part. That is what leads to the exclusion or disciplinary action. Another feature of autistic children is that they are often encouraged to behave in ways—sometimes seeking peer group approval—that get them into trouble and identify them in a way that is unhelpful and often unfair. The provision affects all kinds of groups of children who might find themselves in circumstances that we would not, as a Committee, judge to be reasonable. This part of the Bill must at least be applied with sensitivity in that regard.
There are five other things that I would like to say about this issue. First, the issue is largely about the training and preparation of teachers. We said earlier that many teachers find themselves ill equipped to deal with the challenges presented by special needs children in mainstream schools. A reason to strike the clause out, were it not for its other virtues, is that sometimes exclusion, removal or discipline is the easiest reaction for a teacher who is not equipped to deal with the challenges presented by an autistic child, a child with an acquired brain injury or a child with another kind of learning difficulty, who is displaying inappropriate behaviour, failing to interact with their peers or reacting to authority in an unacceptable way simply out of frustration. It is critical that we focus on the preparation of our schools, head teachers and teachers and ensure that those who are responsible for special needs policy in schools understand the policy behind this part of the Bill.
Secondly, there is an issue about resources. By that, I mean not money, but the physical resources alluded to by my hon. Friend the Member for Upminster when she talked about a separate area within a school where people can be taken to be educated separately for a while. Much of this issue is about not going down an avenue that leads to a cul-de-sac from which we cannot escape. Once one has taken action that leads to a child being taken out of school and possibly formally excluded, it is hard to draw back. A process begins that has a degree of self-fulfilment about it. It could end up at a destination that was not intended initially. The capacity to take a decision that is not so definitive, but which allows a child to be dealt with separately from the remainder of the school for a short period will often be sufficient to satisfy that child’s needs, to protect the interests of their peers and to allow the teachers to adopt the right strategies.

Hugh Bayley: Order. The hon. Gentleman is speaking in order, but I remind him that we have just over 10 minutes to go and that other hon. Members wish to speak in this debate. Whether we will get to further debates is another matter, but he might like to abbreviate his remarks if he can.

John Hayes: I shall finish my three remaining points, leaving plenty of time for other hon. Members to contribute to the debate.
My third point is that it is very important that local authorities and others have a clearly defined strategy on this matter. My experience of local government as shadow Schools Minister, before I was elevated to higher and further education, was that local authority practice in these terms is variable. Some local authorities have very good, well-established policies, while others are—I am trying to choose my words kindly and carefully—considerably less thought through about these matters.
My fourth point is that it is very important that agencies such as the National Autistic Society the charities that have expertise in this field are properly involved in policy formation.
Finally, I would simply say that some of this debate arises from the wholesale integration into mainstream education of children who should not be there. Although the Government have taken, albeit faltering and grudging, steps down the road that we have wanted them to take from the outset, I urge the Government once again to share the Opposition’s faith, passion and belief in special schools, which are very often the best place to educate the sort of children of whom we are speaking. They are secure environments, with high levels of expertise, where those children most frequently find the opportunity to fulfil their potential.
I strongly endorse the sentiments expressed by the hon. Member for Blackpool, South and the briefings we have been given by some excellent agencies. I hope the Minister, who must have this clause, will at least mitigate its effects in the ways that we have described.

David Laws: I shall try to gain the peer group approval that the hon. Gentleman spoke about by being fairly brief and not eating into the last 10 minutes that we have for the mere 40 amendments and new clauses ahead of us.
I add our support for the comments made by the hon. Member for Blackpool, South; we share his concerns about the clause. We hope that the Minister will respond positively. Could he also let us know, if the clause is not to be deleted or amended, what responsibilities the schools will have to notify local authorities of any action they take under the clause?

Oliver Heald: I have two points to make. Woolgrove school in my constituency is a special school that has an autism unit. The special care and help that its staff are able to give young people with such problems is fantastic. I hope that, rather than go down the route of pupil referral units and similar temporary expedients, the Minister will give due prominence in his policy making to having more units of that sort. One of the problems is that there is not enough specialist provision for autism and the wide spectrum it covers.
My other point is that I used to be the governor of a very good special school for EBD youngsters. It strikes me as very sad that that school is closed. It was an Inner London education authority school, and one of the good things about ILEA was that it had some extremely good special schools provision. I hope that the Minister and the Government have learnt that it is a mistake to close special schools, which have such fantastic staff and the ability to help some of our most vulnerable children.

Jim Knight: A school governing body already has the power under section 29(3) of the Education Act 2002 to direct a pupil off-site for education or training. That was intended to enable schools to send pupils to other schools or further education colleges to take academic or vocational subjects that their own school could not provide, but the power is also applied for a number of other purposes that may go beyond that stated in the 2002 Act, and we should tidy that up.
We know that some schools use the power for the purpose of sending challenging pupils to various forms of alternative provision without resorting to the more punitive exclusion legislation. I have listened very carefully and will reflect on what my hon. Friend the Member for Blackpool, South has said. Reliance on section 29(3) of the 2002 Act, where the underlying reason for transfer is behaviour related rather than instruction or training related, is unsatisfactory. We cannot go further in guidance on the existing legislation.
We want legal clarity for school partnerships, such as the excellent Chesil Educational Partnership in my own constituency, to improve behaviour and tackle persistent absence. Partnerships must be able to transfer a challenging pupil between schools or from schools or partnership-managed alternative provision without the parent’s consent, particularly when the parent is a major part of the problem. The clause would allow governing bodies to do that and remain clearly within the law.

Oliver Heald: Will the Minister give way?

Jim Knight: Let me make some progress. If I have time to give way in the next five minutes, I shall certainly do so.
On the arguments that were made, quite properly, about pupils with special educational needs and disabilities, the new power does not in any way relieve the governing body of its duty to use its best endeavours to ensure that the special educational provision is made for pupils with special educational needs; neither does it relieve the local authority of its duties to arrange special educational provision specified in children’s statements of SEN, if they have a statement. Guidance on the new power will send strong messages about the extra consideration needed for pupils with special educational needs.
I am happy to release the indicative regulations to the Committee before the report. If my hon. Friend the Member for Blackpool, South, subsequent to my publishing those indicative regulations, would like to meet me to discuss them and bring with him representatives of the NAS and the SEC, I would be happy to have such a meeting to make sure that we get the regulations right. I could then respond to all the other points that have been made. I could respond to them in detail now but, given the time, it would be better if I did not do so.

Oliver Heald: To pick up on the point made by the hon. Member for Blackpool, South, if the child to be taken out of a mainstream school and put somewhere else is autistic, does the Minister acknowledge that it is unacceptable for that pupil to be put into a special referral unit that has no specialist knowledge of how to look after such a child? The child should always be put into a specialist place.

Jim Knight: As I have said, the governing body and the local education authority have a duty to arrange educational provision that is appropriate for the child’s needs.

Question put and agreed to.

Clause 133 ordered to stand part of the Bill.

Clauses 134 to 142 ordered to stand part of the Bill.

Clause 143

Functions to be exercisable by Welsh Ministers

Jim Knight: I beg to move amendment No. 208, in clause 143, page 81, line 25, after ‘section’ insert
‘(Sixth form admissions etc), (Sixth form admissions etc: appeals) or’.

Hugh Bayley: With this it will be convenient to discuss the following: Government amendment No. 210 to 214, 226, 229 and 230.
Government new clause 10—Sixth form admissions etc.
Government new clause 11—Sixth form admissions etc: appeals.
Government new clause 12—Meaning of “sixth form education” etc.

Jim Knight: I will be exceptionally brief—I have to be. In essence, the measure will give young people who are over the age of 16 some of the rights to state preferences and to have a voice as their parents do for when they are above compulsory school age. There are also a series of technical and consequential amendments that go with that and other clauses.

Amendment agreed to.

Clause 143, as amended, ordered to stand part of the Bill.

Clauses 144 and 145 ordered part of the Bill.

It being Four o’clock, The Chairman, proceeded, pursuant to Standing Order 83D and the Order of the Committee [22 January], as amended, [24 January], to put forthwith the Question necessary dispose of the business to be concluded at that time.

Schedule 1

Minor and consequential amendments

Amendments made: No. 215, in schedule 1, page 85, line 5, at end insert—

‘Children Act 1989 (c. 41)
The Children Act 1989 (c. 41) is amended as follows.
(1) Section 87 (welfare of children in boarding schools and colleges) is amended as follows.
(2) In subsection (4)—
(a) in the opening words for “or” substitute “in England other than an independent educational institution or by a”;
(b) in paragraph (a) omit “an independent school or”.
(3) In subsection (10) after the definition of “further education corporation” insert—
““independent educational institution” has the same meaning as in Chapter 1 of Part 4 of the Education and Skills Act 2008;”.
(1) Section 87B(2) (duties of inspectors under section 87A) is amended as follows.
(2) In paragraph (a) for “an independent school” substitute “an independent educational institution in England, an independent school in Wales”.
(3) After that paragraph insert—
“(aa) in the case of a school that is an independent educational institution in England, to the Chief Inspector for England;”.’.
No. 216, in schedule 1, page 85, line 8, leave out paragraph 2 and insert—
‘ (1) Section 28D (accessibility strategies and plans) is amended as follows.
(2) In subsection (7) for paragraph (c) substitute—
“(c) schools approved under section 342 of the Education Act 1996 (non-maintained special schools).”
(3) In subsection (13) after “Education Act 2005” insert “or Chapter 1 of Part 4 of the Education and Skills Act 2008 (regulation and inspection of independent educational provision in England)”.
(1) In section 28E (accessibility strategies and plans: procedure) is amended as follows.
(2) In subsection (5)—
(a) omit paragraph (b) and the word “or” preceding it;
(b) omit “or plan”.
(3) After subsection (5) insert—
“(5A) If Her Majesty’s Chief Inspector of Education, Children’s Services and Skills asks for a copy of the accessibility plan prepared by the proprietor of an independent school (other than an Academy) in England, the plan must be given to him.”’.
No. 237, in schedule 1, page 85, line 25, at end insert—
‘ After section 537A insert—
“537AA Application of sections 537 and 537A to certain part-time educational institutions in England
(1) Sections 537 and 537A (powers of the Secretary of State to require information from governing bodies etc) apply in relation to a relevant part-time educational institution as they apply in relation to an independent school.
(2) In the application of sections 537 and 537A by virtue of this section—
(a) references to a pupil at an independent school are to be read as references to a student at a relevant part-time educational institution;
(b) references to the proprietor of an independent school are to be read as references to the person or body of persons responsible for the management of a relevant part-time educational institution.
(3) In this section—
(a) “relevant part-time educational institution” means an independent educational institution in England that is not an independent school;
(b) “independent educational institution” has the same meaning as in Chapter 1 of Part 4 of the Education and Skills Act 2008 (see section 76 of that Act);
(c) “student” has the same meaning as in that Chapter (see section 123 of that Act).”’.
No. 217, in schedule 1, page 86, line 3, at end insert—

‘Police Act 1997 (c. 50)
In section 113BA of the Police Act 1997 (suitability information relating to children), in subsection (2)(e)—
(a) after “under” insert “section 113 of the Education and Skills Act 2008 (prohibition on participation in management of independent educational institution in England) or”;
(b) after “school” insert “in Wales”.’.
No. 218, in schedule 1, page 86, line 5, leave out paragraph 10 and insert—
‘ (1) Section 9(2) of the Protection of Children Act 1999 (the Tribunal) is amended as follows.
(2) After paragraph (c) insert—
“(cb) on an appeal by virtue of section 342B or 342C of the Education Act 1996;”.
(3) After paragraph (g) insert—
“(h) on an appeal under Chapter 1 of Part 4 of the Education and Skills Act 2008;”.’.
No. 219, in schedule 1, page 86, line 21, at end insert—
‘ In section 157 (independent school standards) omit subsections (1A) and (2)(b).’.
No. 220, in schedule 1, page 86, line 22, at end insert ‘, and
(b) in subsection (3), for “the National Assembly for Wales” substitute “the Welsh Ministers”.
Omit sections 162A and 162B (inspection of registered schools in England).
In section 163 (power to inspect registered schools in Wales)—
(a) in the title, omit “in Wales”,
(b) in subsection (1)(a), omit “for Wales” and “in Wales”, and
(c) in subsection (5), omit the definition of “the Chief Inspector for Wales”.
In section 164 (inspections under section 163: supplementary) omit “for Wales” in subsections (1), (2)(a) (in both places), (3), (4), (9), (11) and (12).
In section 165(1)(a) (failure to meet standards) omit “162A or”.
In section 167A (prohibition on participation in management of independent schools)—
(a) omit subsection (6)(a), and
(b) in subsection (6)(b) omit “in relation to Wales,”.
For sections 167C and 167D (information and notification in relation to directions under section 167A) substitute—
“167C Directions under section 167A: information
(1) Where the appropriate authority is a public authority other than the Chief Inspector, the Chief Inspector may provide to that authority any information relating to a person which is held by the Chief Inspector in connection with the Chief Inspector’s functions under this Chapter.
(2) HMCI may provide to the appropriate authority any information relating to a person which is held by HMCI in connection with HMCI’s functions under Chapter 1 of Part 4 of the Education and Skills Act 2008.
(3) The Secretary of State may provide to the appropriate authority any information relating to a person which is held by the Secretary of State and which appears to the Secretary of State to be relevant to the exercise of the appropriate authority’s functions under section 167A or by virtue of section 167B.
(4) The Independent Barring Board may provide to the appropriate authority any information relating to a person which is held by the Board in connection with its functions and which appears to it to be relevant to the exercise of the appropriate authority’s functions under section 167A or by virtue of section 167B.
(5) The appropriate authority may provide to the Independent Barring Board, the General Teaching Council for England, the General Teaching Council for Wales, the Secretary of State, HMCI or, where the appropriate authority is a public authority other than the Welsh Ministers, the Welsh Ministers, any information relating to a person which is held by the appropriate authority in connection with its functions under section 167A.
(6) In this section “HMCI” means Her Majesty’s Chief Inspector of Education, Children’s Services and Skills.
167D Directions under section 167A: notification
(1) Where the appropriate authority gives a direction under section 167A(1), or varies or revokes any such direction, it must notify—
(a) the registration authority (unless the appropriate authority is the registration authority), and
(b) HMCI and (if different) the appropriate authority for the purposes of sections 113 to 116 of the Education and Skills Act 2008 (prohibition on participation in management of independent educational institutions in England).
(2) In this section “HMCI” means Her Majesty’s Chief Inspector of Education, Children’s Services and Skills.”
(1) Section 171 is amended as follows.
(2) In the definition of “Chief Inspector”—
(a) omit paragraph (a), and
(b) in paragraph (b) omit “in relation to a school in Wales,”.
(3) Omit the definition of “early years provision”.
(4) In the definition of “the register”—
(a) omit paragraph (a), and
(b) in paragraph (b) omit “in relation to a school in Wales,”.
(5) In the definition of “registration authority” for paragraphs (a) and (b) substitute “the Welsh Ministers”.’.
No. 238, in schedule 1, page 86, line 31, at end insert—
‘ (1) Section 59 (combined reports) is amended as follows.
(2) In subsection (1)(d), after “independent schools” insert “in Wales”.
(3) After subsection (1)(e) (inserted by paragraph 44(d) of Schedule 2 to the Childcare Act 2006 (c. 21)) insert “, and
(f) Chapter 1 of Part 4 of the Education and Skills Act 2008 (regulation of independent educational provision in England).”
In section 62(4)(a) (power of Welsh Ministers to change inspection framework for Wales) for sub-paragraph (iv) substitute—
“(iv) sections 90 to 98 of the Education and Skills Act 2008 (independent educational institutions in England),”.’.
No. 221, in schedule 1, page 86, line 33, leave out paragraph 18 and insert—
‘ The Childcare Act 2006 is amended as follows.
(1) Section 13 (duty to provide information, advice and training to childcare providers) is amended as follows.
(2) In subsection (1)(c)—
(a) in the opening words, for “schools” substitute “institutions”;
(b) in sub-paragraph (ii), for “approved by the Secretary of State” substitute “approved”;
(c) in sub-paragraph (iii), for “an independent school” substitute “an independent educational institution”.
(3) In subsection (1)(d) for “school” substitute “institution”.
(1) Section 34(2) (requirement to register: other early years providers) is amended as follows.
(2) In paragraph (a)—
(a) in the opening words for “schools” substitute “institutions” and for “school’s” substitute “institution’s”;
(b) in sub-paragraph (ii) for “approved by the Secretary of State” substitute “approved”;
(c) in sub-paragraph (iii) for “an independent school” substitute “an independent educational institution”.
(3) In paragraph (b) for “school” in both places substitute “institution”.
(4) For paragraph (c) substitute—
“(c) where the provision is made at a school (including a school that is an independent educational institution)—
(i) the child is a registered pupil at the school, or
(ii) if the provision is made for more than one child, at least one of the children is a registered pupil at the school.”
In section 49 (inspections) in subsection (4) for “independent school” substitute “independent educational institution”.
(1) Section 53(2) (requirement to register: other later years providers for children under eight) is amended as follows.
(2) In paragraph (a)—
(a) in the opening words for “schools” substitute “institutions” and for “school’s” substitute “institution’s”;
(b) in sub-paragraph (ii) for “approved by the Secretary of State” substitute “approved”;
(c) in sub-paragraph (iii) for “an independent school” substitute “an independent educational institution”.
(3) In paragraph (b) for “school” in both places substitute “institution”.
(4) For paragraph (c) substitute—
“(c) where the provision is made at a school (including a school that is an independent educational institution)—
(i) the child is a registered pupil at the school, or
(ii) if the provision is made for more than one child, at least one of the children is a registered pupil at the school.”
(1) Section 63(3) (applications for registration on the general register: other childcare providers) is amended as follows.
(2) In paragraph (a)—
(a) in the opening words for “schools” substitute “institutions” and for “school’s” substitute “institution’s”;
(b) in sub-paragraph (ii) for “approved by the Secretary of State” substitute “approved”;
(c) in sub-paragraph (iii) for “an independent school” substitute “an independent educational institution”.
(3) In paragraph (b) for “school” in both places substitute “institution”.
(4) For paragraph (c) substitute—
“(c) where the provision is made at a school (including a school that is an independent educational institution)—
(i) the child is a registered pupil at the school, or
(ii) if the provision is made for more than one child, at least one of the children is a registered pupil at the school.”
In section 106 (general interpretation) for the definition of “independent school” substitute—
““independent educational institution” has the same meaning as in Chapter 1 of Part 4 of the Education and Skills Act 2008;”.’.
No. 222, in schedule 1, page 87, line 5, leave out paragraph 20 and insert—
‘ (1) Section 11 (publication of proposals to establish maintained schools: special cases) is amended as follows.
(2) In subsection (3)(a) for “Chapter 1 of Part 10 of EA 2002 (regulation of independent schools)” substitute “Chapter 1 of Part 4 of the Education and Skills Act 2008 (regulation of independent educational institutions in England)”.
(3) In subsection (9) for “approved by the Secretary of State” substitute “approved”.’.
No. 223, in schedule 1, page 87, line 10, at end insert—
‘ (1) Section 171 (prohibition on participation in management: transitional provision) is amended as follows.
(2) In subsection (5), in the definition of “regulations”, for paragraphs (a) and (b) substitute “by the Welsh Ministers;”.’.
No. 224, in schedule 1, page 87, line 10, at end insert—

‘Safeguarding Vulnerable Groups Act 2006 (c. 47)
(1) The Safeguarding Vulnerable Groups Act 2006 is amended as follows.
(2) In Schedule 4 (regulated activity), paragraph 1(10) is amended as follows.
(3) After paragraph (b) insert—
“(ba) a body approved under section 90 of the Education and Skills Act 2008 (bodies approved to inspect registered independent educational institutions in England);”.
(4) In paragraph (c) after “school” insert “in Wales”.’.
No. 225, in schedule 1, page 87, line 16, at end insert—

‘Social Security Administration Act 1992 (c. 5)
The Social Security Administration Act 1992 (c. 5) is amended as follows.
(1) Section 2A (claim or full entitlement to certain benefits conditional on work-focused interviews) is amended as follows.
(2) In subsection (8), in the definition of “the designated authority”—
(a) after paragraph (c) insert—
“(ca) subject to subsection (9), a county council in England,”;
(b) in paragraph (d), before “a person” insert “subject to subsection (9),”;
(c) in that paragraph for “any such authority” substitute “any authority mentioned in paragraph (c) or (ca)”.
(3) After that subsection insert—
“(9) A county council in England or a person providing services to, or authorised to exercise any function of, such a council may be specified as the designated authority only in relation to interviews with persons to whom the council is required to make support services available under section 54(1) of the Education and Skills Act 2008 (support services: provision by local education authorities).”
(1) Section 2AA (full entitlement to certain benefits conditional on work-focused interview for partner) is amended as follows.
(2) In subsection (7), in the definition of “designated authority”—
(a) after paragraph (c) insert—
“(ca) subject to subsection (8), a county council in England,”;
(b) in paragraph (d), before “a person” insert “subject to subsection (8),”;
(c) in that paragraph, for “a local authority” substitute “any authority mentioned in paragraph (c) or (ca)”.
(3) After that subsection insert—
“(8) A county council in England or a person providing services to, or authorised to exercise any function of, such a council may be specified as the designated authority only in relation to interviews with persons to whom the council is required to make support services available under section 54(1) of the Education and Skills Act 2008 (support services: provision by local education authorities).”
(1) Section 2C (optional work-focused interviews) is amended as follows.
(2) In subsection (1), after “local authorities” insert “or, subject to subsection (3A), county councils in England”.
(3) In subsection (3), after “a local authority” insert “or on a county council in England”.
(4) After subsection (3) insert—
“(3A) Regulations under this section may confer functions on a county council in England only in relation to interviews with persons to whom the council is required to make support services available under section 54(1) of the Education and Skills Act 2008 (support services: provision by local education authorities).” ’.
No. 226, in schedule 1, page 88, line 5, at end insert—

‘School Standards and Framework Act 1998 (c. 31)
26A The School Standards and Framework Act 1998 (c. 31) is amended as follows.
26B (1) Section 86 (parental preferences) is amended as follows.
(2) After subsection (1) insert—
“(1ZA) Subsection (1) does not apply in relation to—
(a) sixth form education, or
(b) any other education to be provided for a child who—
(i) has ceased to be of compulsory school age, or
(ii) will have ceased to be of compulsory school age before the education is provided for him.”
(3) In subsection (2), for “subsections (3) and (3A)” substitute “subsection (3)”.
(4) Omit subsections (3A) and (3B).
(5) In subsection (8), for “subsections (3) and (3A)” substitute “subsection (3)”.
(6) In subsection (9), omit “or arrangements such as are mentioned in subsection (3B)”.
26C In section 87 (no requirement to admit children permanently excluded from two or more schools), in subsection (1), for “duty imposed by section 86(2) does” substitute “duties imposed by section 86(2) and section 86B(1) do”.
26D In section 89 (procedure for determining admission arrangements), in subsection (1A)—
(a) for “and (3A)” substitute “, 86B(2) and (4)”, and
(b) for “parental” substitute “expressed”.
26E In section 89B (co-ordination of admission arrangements), after subsection (6) insert—
“(7) Nothing in this section applies in relation to arrangements for the admission to maintained schools of pupils—
(a) who—
(i) have ceased to be of compulsory school age, or
(ii) will have ceased to be of compulsory school age before education is provided for them at the school, or
(b) for the purpose of receiving sixth form education.”
26F Omit section 94(7).
26G (1) Section 95 (appeals relating to children to whom section 87 applies) is amended as follows.
(2) In subsection (1)—
(a) for “the parent of a child” substitute “the appropriate person”, and
(b) in paragraph (b), for “the child” substitute “a child”.
(3) After that subsection insert—
“(1A) In subsection (1), “the appropriate person”, in relation to a child, has the same meaning as in section 94.” ’.
No. 227, in schedule 1, page 88, line 33, at end insert—

‘Education and Inspections Act 2006 (c. 40)
30A (1) In section 180 of the Education and Inspections Act 2006 (functions to be exercisable by National Assembly), in subsection (2) after “sections 40 to 54 (school admissions);” insert—
“section 55 (right of sixth-form pupils to opt out of religious worship);”.
(2) The amendment made by sub-paragraph (1) is deemed always to have had effect.’.—[Jim Knight.]

Schedule 1, as amended, agreed to.

Schedule 2

Repeals and revocations

Amendments made: No. 228, in schedule 2, page 88, line 36, at end insert—
‘Children Act 1989 (c. 41)
In section 87(4)(a) the words “an independent school or”.
Disability Discrimination Act 1995 (c. 50)
In section 28E(5)— (a) paragraph (b) and the word “or” preceding it, and (b) the words “or plan”.’.
No. 229, in schedule 2, page 88, leave out lines 39 and 40.
No. 230, in schedule 2, page 89, line 1, at end insert—
‘In section 86— (a) subsections (3A) and (3B), and (b) in subsection (9), the words “or arrangements such as are mentioned in subsection (3B)”.
Section 94(7).
In Schedule 30, paragraph 60.’
No. 239, in schedule 2, page 89, line 7, at end insert—
‘Criminal Justice and Court Services Act 2000 (c. 43)
In Schedule 7, paragraphs 208 to 210.’.
No. 231, in schedule 2, page 89, line 8, column 2, at beginning insert—
‘In section 157— (a) subsection (1A), and (b) in subsection (2), paragraph (b) and the word “and” preceding it.’.
No. 232, in schedule 2, page 89, line 11, at end insert—
‘Sections 162A and 162B.
In section 163— (a) in subsection (1)(a), the words “for Wales” and “in Wales”, and (b) in subsection (5), the definition of “the Chief Inspector for Wales”.
In section 164, in subsections (1), (2)(a) (in both places), (3), (4), (9), (11) and (12), the words “for Wales”.
In section 165(1)(a), the words “162A or”.
In section 167A(6)— (a) paragraph (a), and (b) in paragraph (b), the words “in relation to Wales,”.
In section 171— (a) in the definition of “Chief Inspector”, paragraph (a) and in paragraph (b) the words “in relation to a school in Wales”, (b) the definition of “early years provision”, and (c) in the definition of “the register”, paragraph (a) and in paragraph (b) the words “in relation to a school in Wales”.
In Schedule 4, paragraphs 3(2), (5) and (7) and 8(7).
In Schedule 7, paragraph 5(2)(a).’.
No. 240, in schedule 2, page 89, line 11, at end insert—
‘In Schedule 7, paragraph 10.’.
No. 241, in schedule 2, page 89, line 12, at end insert—
‘Education Act 2005 (c. 18)
In section 59(1), at the end of paragraph (d), the word “and”.
In Schedule 8, paragraphs 2 and 4.
In Schedule 9, paragraph 26.
Childcare Act 2006 (c. 21)
Section 47(1) and (3).
Education and Inspections Act 2006 (c. 40)
In Schedule 14, paragraphs 62, 73(3) and 75.
National Health Service (Consequential Provisions) Act 2006 (c. 43)
In Schedule 1, paragraph 202.’.
—[Jim Knight.]

Schedule 2, as amended, agreed to.

Clauses 146 and 147 ordered to stand part of the Bill.

Clause 148

Extent

Amendment made: No. 204, in clause 148, page 83, line 3, leave out ‘71’ and insert ‘(Benefit and training information)’.—[Jim Knight.]

Clause 148, as amended, ordered to stand part of the Bill.

Clause 149

Commencement

Amendments made: No. 209, in clause 149, page 83, line 21, at end insert—
‘( ) paragraph 30A of Schedule 1.’.
No. 210, in clause 149, page 83, line 24, after ‘provisions’ insert
‘, so far as they apply in relation to Wales,’.
No. 211, in clause 149, page 83, line 25, at end insert—
‘( ) sections (Sixth form admissions etc), (Sixth form admissions etc: appeals) and (Meaning of “sixth form education” etc);’.
No. 212, in clause 149, page 83, line 26, leave out from ‘138’ to end of line 35.
No. 213, in clause 149, page 83, line 36, leave out from ‘141’ to end.
No. 214, in clause 149, page 83, line 36, at end insert—
‘( ) paragraphs 26A to 26G of Schedule 1 (and section 145 so far as relating to those paragraphs);
( ) the repeals and revocations in Schedule 2 so far as relating to—
(i) sections 86 and 94 of the School Standards and Framework Act 1998 (c. 31),
(ii) section 99(4) of the Learning and Skills Act 2000 (c. 21),
(iii) Schedules 4 and 17 to the Education Act 2002 (c. 32),
(iv) paragraphs 19 and 20 of Schedule 1 to the Qualifications, Curriculum and Assessment Authority for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3239),
(and section 145 so far as relating to those repeals and revocations).’.
No. 205, in clause 149, page 83, line 40, leave out ‘71’ and insert ‘(Benefit and training information)’.
No. 234, in clause 149, page 84, line 8, leave out ‘section 1(b)’ and insert ‘sections 1(b) and 26(1)(b)’.
No. 235, in clause 149, page 84, line 12, leave out ‘that substitution’ and insert ‘those substitutions’.
No. 236, in clause 149, page 84, line 15, leave out ‘that substitution’ and insert ‘those substitutions’.—[Jim Knight.]

Motion made, and Question put, That clause 149, as amended, and clause 150 stand part of the Bill.

The Committee divided: Ayes 8, Noes 6.

Question accordingly agreed to.

Clause 149, as amended, and clause 150 ordered to stand part of the Bill.

New Clause 6

Powers of National Assembly for Wales
‘(1) In Part 1 of Schedule 5 to the Government of Wales Act 2006 (Assembly Measures), field 5 (education and training) is amended as follows.
(2) After matter 5.4 insert—
“Matter 5.4A
The regulation of schools that are not maintained by local education authorities, other than nursery schools.”
(3) In matter 5.15 after “The inspection of—” insert—
“(za) schools that are not maintained by local education authorities, other than nursery schools;
(zb) education or training provided otherwise than by schools within paragraph (za) for children who are not above compulsory school age;”.
(4) In that matter, in paragraph (b), for “such institutions” substitute “institutions within paragraph (za) or (a)”.
(5) In matter 5.16 after “mentioned in” insert “paragraphs (a) to (d) of”.’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 7

Benefit and training information
‘(1) Information within subsection (2) or (3) may be—
(a) used in connection with the exercise of an assessment function of the Secretary of State or a devolved authority, or
(b) disclosed to a person for use in connection with the exercise of an assessment function of the Secretary of State or a devolved authority.
(2) Information is within this subsection if—
(a) it is about an individual who has attained the age of 19, and
(b) it is held by the Secretary of State for the purposes of any function of the Secretary of State relating to social security.
(3) Information is within this subsection if—
(a) it is about an individual who has attained the age of 19,
(b) it is held by the Secretary of State or a devolved authority, and
(c) it relates to any training or course of education undertaken by the individual (whether before or after the individual attained the age of 19).
(4) For the purposes of this section and sections (Revenue and Customs information) to 74, “assessment function” means any of the following functions—
(a) evaluating the effectiveness of training or education provided for persons who have attained the age of 19;
(b) assessing policy in relation to the provision of such training or education;
(c) assessing policy in relation to social security or employment as it affects the provision of or participation in such training or education.’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 8

Revenue and Customs information
‘(1) The Commissioners for Her Majesty’s Revenue and Customs may disclose information relating to income tax or tax credits to a person for use in connection with the exercise of an assessment function of the Secretary of State or a devolved authority.
(2) The reference in subsection (1) to the Commissioners for Her Majesty’s Revenue and Customs includes a reference to a person authorised by the Commissioners.’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 9

Use of information
‘(1) Information disclosed to a person in reliance on section (Benefit and training information)(1)(b) or (Revenue and Customs information) may be used by that person only in connection with the exercise of an assessment function of the Secretary of State or a devolved authority.
(2) Subsection (3) applies where information about an individual is used in connection with the exercise of an assessment function of the Secretary of State or a devolved authority—
(a) in reliance on section (Benefit and training information)(1)(a), or
(b) under subsection (1) above.
(3) So far as is reasonably practicable, the information must not be used in such a way that the identity of the individual is disclosed to, or capable of being discovered by, a person carrying out an evaluation or assessment of a kind mentioned in section (Benefit and training information)(4)(a) to (c).’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 10

Sixth form admissions etc
‘After section 86 of the School Standards and Framework Act 1998 (c. 31) (parental preferences) insert—
“86A Preferences relating to sixth-form education: local education authority arrangements
(1) A local education authority shall make arrangements for enabling—
(a) a child in the authority’s area to express a preference as to the school at which he wishes sixth form education to be provided for him in the exercise of the authority’s functions,
(b) a parent of such a child to express a preference as to the school at which he wishes sixth form education to be so provided for his child,
(c) a relevant child to express a preference as to the school at which he wishes education other than sixth form education to be provided for him in the exercise of the authority’s functions, and
(d) a parent of such a child to express a preference as to the school at which he wishes such education to be so provided for his child,
and, in each case, for enabling the person expressing the preference to give reasons for his preference.
(2) In subsection (1), “relevant child”, in relation to a local education authority and any education, means a child in the authority’s area who—
(a) has ceased to be of compulsory school age, or
(b) will have ceased to be of compulsory school age before the education in question is provided for him.
(3) Arrangements made under subsection (1) shall allow—
(a) a person who is to be able to express a preference under any of paragraphs (a) to (d) of that subsection to express preferences for more than one school;
(b) preferences to be expressed, in relation to a child, by both the child and a parent of his.
(4) Where—
(a) the arrangements for the admission of pupils to a maintained school provide for applications for admission to be made to (or to a person acting on behalf of) the governing body of the school, and
(b) a child (whether or not in the area of the authority maintaining the school) or his parent makes such an application,
that person shall be regarded for the purposes of this Chapter as having expressed a preference for that school in accordance with arrangements made under subsection (1).
(5) Regulations may provide, in cases where a school operates arrangements for entry to the sixth form of children who have been admitted to the school, for a child who has been admitted to the school, or his parent, to be regarded, in prescribed circumstances, for the purposes of this Chapter as having expressed a preference for sixth form education to be provided for the child at the school in accordance with arrangements made under subsection (1).
86B Duty in relation to preferences expressed under section 86A: admission authorities of maintained schools
(1) Subject to subsections (2) and (4) and section 87, the admission authority for a maintained school shall comply with any preference expressed in accordance with arrangements made under section 86A(1).
(2) The duty imposed by subsection (1) does not apply if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources.
(3) Subsections (5) to (5B) of section 86 apply for the purpose of determining whether any prejudice should be taken to arise for the purposes of subsection (2), but with the substitution of references to that subsection for references to subsection (3)(a) of section 86.
(4) The duty imposed by subsection (1) does not apply in a case where a preference is expressed in relation to sixth form education if—
(a) the relevant selection arrangements for the preferred school are wholly based on selection by reference to ability or aptitude, and
(b) compliance with the preference would be incompatible with selection under those arrangements.
(5) Where the relevant selection arrangements for a school provide for all pupils selected under the arrangements to be selected by reference to ability or aptitude, those arrangements shall be taken for the purposes of subsection (4)(a) to be wholly based on selection by reference to ability or aptitude whether or not they also provide for the use of additional criteria in circumstances where the number of children in a relevant age group who are assessed to be of the requisite ability or aptitude is greater than the number of pupils which it is intended to admit to the school in that age group.
(6) In this section “the relevant selection arrangements”, in relation to a school, means—
(a) the arrangements for admission to the school for sixth form education, or
(b) those arrangements and the arrangements for entry to the sixth form of children who have been admitted to the school.” ’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 11

Sixth form admissions etc: appeals
‘(1) Section 94 of the School Standards and Framework Act 1998 (c. 31) (appeal arrangements: general) is amended as follows.
(2) In subsection (1)—
(a) for “the parent of a child” substitute “the appropriate person”;
(b) before paragraph (a) insert—
“(za) in a case where the local education authority are the admissions authority, any decision made by or on behalf of the authority refusing a child admission to a school,”;
(c) in paragraph (a)—
(i) for “any decision” substitute “any other decision”, and
(ii) for “the child” substitute “a child”;
(d) in paragraph (b), for “the child” substitute “a child”.
(3) In subsection (1A), for “the parent of” substitute “the appropriate person in relation to”.
(4) In subsection (2)—
(a) for “the parent of a child” substitute “the appropriate person”;
(b) for “the child” substitute “a child”.
(5) In subsection (2A), for “the parent of” substitute “the appropriate person in relation to”.
(6) After that subsection insert—
“(2B) In this section, “the appropriate person”, in relation to a child, means—
(a) in the case of a decision made in relation to a preference expressed in accordance with arrangements made under section 86A(1) as to where education should be provided for the child any of the following—
(i) the child;
(ii) a parent of his;
(iii) the child and a parent of his, acting jointly;
(but subject to regulations made under subsection (5A));
(b) in any other case, a parent of the child.”
(7) In subsection (5A), after paragraph (a) insert—
“(aa) in cases where separate appeals are made by a parent and a child against a decision made in relation to a preference expressed in accordance with arrangements made under section 86A(1), for the appeals to be joined, or otherwise for securing that no more than one appeal against the decision is proceeded with;”.’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 12

Meaning of “sixth form education” etc
‘After section 98 of the School Standards and Framework Act 1998 (c. 31) insert—
“98A Meaning of “sixth form education” etc
(1) In this Chapter, “sixth form education” means secondary education suitable to the requirements of pupils who are over compulsory school age.
(2) References in this Chapter, in relation to a child who has been admitted to a school, to his entering the school’s sixth form are to his being transferred to a class at the school in which sixth form education is provided from a class in which such education is not so provided.” ’.—[Jim Knight.]

Brought up, and added to the Bill.

New Clause 14

Exercise of travel functions by local education authorities in England: duty to have regard to religion or belief of persons of sixth form age
‘In section 509AD of the Education Act 1996 (c. 56) (LEAs in England: duty to have regard to religion or belief in exercise of travel functions), in subsection (1), for the words from “to any wish” to the end substitute—
“(a) to any wish of a parent of such a person for him to be provided with education or training at a particular school, institution or other place where that wish is based on the parent’s religion or belief, and
(b) in a case where the person in question (or any of the persons in question) is of sixth form age (within the meaning given in section 509AC(1)), to any wish of that person to be provided with education or training at a particular school, institution or other place where that wish is based on the person’s religion or belief.”’.—[Jim Knight.]

Brought up, and added to the Bill.

Ordered,
That certain written evidence already reported to the House be appended to the proceedings of the Committee.—[Jim Knight.]

Jim Knight: On a point of order, Mr. Bayley, I would like to take the opportunity to thank you for the way in which you have managed the Committee’s proceedings. At times they have not been easy, particularly today when there has been so much business to complete. Last week we thanked Mr. Bercow when we knew that it was his last time in the Chair.
I thank the Clerks, the Official Reporters, the doorkeepers and the police for facilitating the Committee’s proceedings. I could not have performed my duties without the support of my invisible and unheard officials, and I am grateful to them.
I extend my thanks to the hon. Members for Bognor Regis and Littlehampton and for South Holland and The Deepings—a remarkable double act that I have worked opposite before. I have tried to think of the appropriate analogy—Little and Large, Starsky and Hutch, Laurel and Hardy, or Marx and Engels. Morecambe and Wise came to mind, as one of the hon. Gentlemen seems to put the more into Morecambe and the other, on some occasions, puts the wise into Wise. The Committee’s proceedings would not have been the same without the meandering of the hon. Member for South Holland and The Deepings, as opposed to the comments of the straight man that he works with. His meanderings took us to Proust, William Morris, liberalism, his son and his wife, and were all part of the rich tapestry and entertainment of the Committee.
I also thank the hon. Members for Yeovil and for Bristol, West who provided robust opposition. They are not so much a double act as a tag wrestling team, as I think this is the only occasion when we have seen them in the room together.
The Under-Secretary of State for Innovation, Universities and Skills, my hon. Friend the Member for Tottenham, also helped me with the eight clauses that he took through. During the course of this Committee he became a father, and the football team that his constituency is named after and he supports won a domestic cup, even though it is a less important one. I congratulate him.
We have also had significant contributions from the hon. Member for North-East Hertfordshire with his obsessions, and great expertise and wisdom from my hon. Friend the Member for Llanelli.
I have been ably supported by the Whip. My hon. Friend the Member for Worcester has, as ever, been very helpful to me and there has been great support behind me, principally from my hon. Friend the Member for Bridgend but also from my hon. Friends the Members for Hove and for Llanelli and even, on one occasion, my hon. Friend the Member for Blackpool, South.
I have not mentioned everybody because we all want to go home but I am very grateful to them all. Again, thank you, Mr. Bayley.

Nick Gibb: Further to that point of order, Mr. Bayley. This has been an interesting Bill Committee, as all Committees on which my hon. Friend the Member for South Holland and The Deepings serves tend to be.
I thank you, Mr. Bayley, for your objective and cheerful chairmanship. I thank my hon. Friend for sharing the burden of representing the Opposition viewpoint on the Bill. He has a charismatic style that is welcome and he can always be relied upon to fill space and time when needed. He is as much a part of the arts and crafts movement as William Morris—or at least a part of that era. He is also a ferret when it comes to detailed scrutiny of Bills. His support has been very welcome.
I thank my hon. Friend the Member for Upminster for her assiduous whipping and her contributions to the debate. My hon. Friend the Member for North-East Hertfordshire reflected my passion for phonics with his equally passionate concern about reading standards. I am grateful to him for airing those concerns so assiduously and so frequently. I am also grateful to my hon. Friend the Member for Broxbourne for his friendly and always interesting contributions to the debate.
It has been pleasure dealing with both Ministers, who have always been polite and as full as they dare in explaining the clauses and opposing our amendments.
Finally, it has also been a pleasure listening to the hon. Member for Yeovil, who shares so many of our concerns about standards, and to the hon. Member for Bristol, West in his later contributions to the Bill.

David Laws: Further to the point of order, Mr. Bayley. I too thank you and Mr. Bercow for the way in which you have chaired what I think has been a very good-natured Committee over these past few weeks. I add my thanks to the Clerks, officials, doorkeepers, policemen and Hansard reporters, and all those who have helped us with our proceedings.
I also thank those on whom Opposition Members tend to have to rely—those outside bodies who provide and, as the hon. Member for South Holland and The Deepings said, sometimes inspire to a great extent the amendments that we table. I mention in particular the National Union of Teachers and Barnardo’s, who did such a job of inspiring that they may even have helped to tweak elements of the Bill.
I thank the Minister, my hon. Friend, if I may say so, and near neighbour the Member for South Dorset, who was always extremely patient and constructive and very well briefed. We hope to see him in this place for many years to come, if I am allowed to say that without causing offence to anyone in my part of the world. I thank his colleagues for their patience and for their assiduous attendance, which sadly did not permit us to spring any surprises on the Whips. I also thank the hon. Member for Tottenham who was delivering his child—or second child—at the same time as he was delivering, as Under-Secretary of State for Innovation, Universities and Skills, most of the Bill, covering most of the clauses very effectively.
On this side of the Committee, I obviously thank my hon. Friend the Member for Bristol, West, particularly for covering during the debates on attendance notices when I was inadvertently absent and unable to move one of my own amendments. He did an excellent job. I read his speech today and it is far better than I could have managed.
I thank the Conservative members of the Committee. We hoped to hear more about synthetic phonics, but we enjoyed the contributions of the hon. Members for Bognor Regis and Littlehampton and for North-East Hertfordshire. The latter kept us on our toes on the importance of reading, writing and, of course, adding-up.
We were grateful for the entertainment value and the acute observations provided by the hon. Member for South Holland and The Deepings. Only today I was looking at his biographical details. His chosen sport is darts and we note the relevance of that to many of his contributions. I was surprised to see that his main hobby is listed as jam making, which I imagine is an activity that takes some time and involves a great deal of lone activity—we saw evidence of that in his later contributions in the final stages today.
We had one moment of great optimism, Mr. Bayley, when your fellow Chairman, Mr. Bercow, caught the hon. Gentleman reading a book on liberalism during one of my speeches. For a moment, until we discovered the nature of volume, I thought that we could look forward with optimism to the hon. Gentleman’s future political career. I hope that I can lend him a more constructive book on liberalism to influence his future contributions.

Hugh Bayley: I thank colleagues for their kind words about me and my co-Chairman, and I will pass their comments on to Mr. Bercow. Like you all, I am indebted to the Clerks, the Hansard reporters and all the staff who have made it possible for us to conduct business in the Committee. I am indebted to you all for the wise words and good humour with which you have conducted the debate on issues on which sometimes there have been passionate disagreements. Most of all, I am indebted to John Hayes for deciding that he did not need to raise a brief point of order at this point.

Bill, as amended, to be reported, pursuant to the Order of the House [14 January].

Committee rose at thirteen minutes past Four o’clock.